Intellectual Property Law

Podcast Interview of Professor Charles Nesson: Why Statutory Damages Under the Copyright Law are Unconstitutional in the Tenenbaum Case

By Michael Kivi

As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconsitutional.

Nesson is courteously interviewed by Professor Doug Lichtman on the Intellectual Property Colloquium podcast here.

Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum.  This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes - I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court.  I doubt that the RIAA ever expected this, but they can’t exactly back down at this point. I hope to write about this case it in more detail in a future post, and highlight some of the bizarre turns the case has taken with Nesson guiding Tenenbaum’s defense.

Full post as published by Mass Law Blog on April 07, 2009 (boomark / email).