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Tenenbaum: Are Copyright Law's Statutory Damages Unconstitutional for NonCommercial File Sharers?

By Pamela Jones et al.

Professor Charles Nesson of Harvard Law School, the attorney for Joel Tenenbaum, has filed a motion to dismiss (here's the memorandum of law [PDF] in support of the motion) on behalf of his client, the defendant in SONY BMG Music v Tenenbaum. I thought you would find it interesting because he argues that statutory damages for noncommercial defendants under copyright law are unconstitutional, unreasonable, and way out of proportion to any alleged injury to the plaintiffs here, which at most is, he argues, de minimis:

Punitive damages for infringement authorized by the Copyright Act, 17 U.S.C. § 504(c), represent an unconstitutional abrogation of due process when enforced against a noncommercial defendant. The damages prescribed by the statute bear no reasonable relation to actual harms resulting from Joel Tenenbaum's individual alleged infringement.

I have no idea if the motion has a prayer of being granted, actually, particularly given the increasingly tense mood [PDF] in this litigation, but it's surely a valid question to ask. The US Justice Department has asked for more time [PDF] to decide if it should file a brief in support the plaintiff's statutory damages theory. Before you say blech, stop and consider what is on the table here. Tenenbaum is claiming that the US Copyright Act is unconstitutional. The implications are huge, and the DOJ wanted time to read Tenenbaum's motion to dismiss first, so as to respond meaningfully to it, or not, depending on its analysis. It will let the court know its decision on the 23rd.

I thought I'd give you some resources, so you can follow the arguments being made in this motion. And I have done the memorandum of law as text for you.

Full post as published by Groklaw on March 16, 2009 (boomark / email).