I don't know if you recall my post last summer about the damages in
Sony BMG v. Tenenbaum (filesharing case) being slashed, but that order went on appeal before the First Circuit today. I had the good fortune to be present.
The district judge directed a verdict on liability, so the only issue up on appeal was the
damages owed by Tenenbaum for downloading songs. The discussion--which involved not only lawyers for Tenenbaum and for Sony, but the DOJ, the EFF, and a Harvard Law third-year--mainly focused on whether the statutory damages provision of the Copyright Act, which I discussed
a little earlier, was intended* to apply to consumers. Tenenbaum's side argued that unlawful filesharing is done casually--like jaywalking--and that at the time the statute was passed, no consumer had ever been sued for private infringement, taking place entirely inside the home. On the other hand, Sony argued that the statute contains no home-copying exception, and that the only reason no litigation had happened until the '03 RIAA campaign was because it just wasn't worth the trouble.
* I suspect that for many of you, it's a foregone conclusion that Congress intended to hit consumers with statutory damages, because they're in the copyright lobby's pocket. Whether that's true or not, the court is
usually bound to apply the law as it believed Congress meant it.
A secondary but related issue was the degree of harm that Tenenbaum actually caused. Of course, the very idea of statutory damages is to recompense the rightsholder when damages are difficult to pin down, but Sony nevertheless argued that filesharing was different in nature, and far more harmful, than previous forms of copying**--in essence making the filesharer not just a home copier, but a home
distributor. Sony then went on to argue that a good test of damages in a copyright claim was the amount that the rightsholder would've charged for a license to do the conduct at issue, and that the price it would've charged for a license to "essentially make these songs public domain" would've been high indeed.
Personally, I don't buy this argument because it attributes the harm of
all filesharers, taken in the aggregate, to Tenenbaum personally, in violation of
State Farm v. Campbell, a point noted by Judge Gertner in the initial order reducing the damages. Tenenbaum's counterargument followed similar lines, arguing that applying the full force of the statutory-damages regime to regular consumers would be an absurd and unjust result, and thus should not be a permissible reading of the statute.
** for extra lulz, see the Sony lawyer's description of P2P to the court--e.g. "he changed file serving sharers"
Overall, I don't think it's looking good for Tenenbaum. The EFF lawyer got shut down in one question (*awkward silence* "...may I c-continue?"), and the head judge seemed eager to put the case away on narrow procedural grounds... making much, for instance, of the fact that many of Tenenbaum's arguments hadn't been raised at trial. I think the real question now is what impact an unfavorable ruling from the Circuit will have. Absent a Circuit split, I don't think it'll go up to SCOTUS, and it's possible the RIAA may be emboldened by the decision and start suing downloaders directly again. That said, if the decision is made on procedural grounds, it doesn't quite lend the RIAA the moral support it's looking for.
More:
Direct transcript of the argumentLegally SociableTorrentFreak
