Joel Tenenbaum's $675,000 Problem

Last Thursday, the court found Joel Tenenbaum liable as an infringer for illegally downloading thirty copyrighted songs over the P-2-P network, KaZaa. The court did so because Tenenbaum, a 25 year old physics doctoral student at Boston University, admitted that he downloaded the music, and distributed the downloads to others, without permission. He did so even AFTER he was sued by the recording industry. Ouch.

Now the worst part. The jury today awarded the record companies a verdict of $675,000 damages against Tenenbaum. This averages $22,500 per song. The record companies may still be able to opt for statutory damages up to $150,000 per song, plus they are entitled to recover their court costs and attorneys' fees. And don't forget accruing interest. By the time the court adds up all the numbers, the judgment could be closer to $1 million.

Tenenbaum says that he wants to appeal in order to test the constitutionality of the Copyright Act. Two things. First, Tenenbaum needs to post a bond in the amount of the judgment or the record companies can garnish, garnish, garnish notwithstanding any appeal. Tenenbaum says that he may file for bankruptcy protection. But the bankruptcy laws will not necessarily shelter a debtor from intentional conduct.

Second, Tenenbaum may argue on appeal that the damages component of the Copyright Act is somehow not up to constitutional standards. But Congress has exclusive authority under Art. I, Sect. 8, cl. 8 of the Constitution to enact copyright laws, and damages have been authorized under every form of copyright statute going back to day one, the Copyright Act of 1790. During the past 219 years, the Supreme Court has never hinted that a damage claim under the Copyright Act is somehow suspect or unfair.

All this trouble. Yet Tenenbaum could have downloaded these songs legally for 99 cents each. Go figure.