April 07, 2011
"It's really the complete undermining of the copyright," Clement replied. Tenenbaum's distribution to others means damages can't be based on the fact that he didn't purchase his own copies of the music recordings, Clement said. "To do what he did, the value of that license is the value of that copyrighted work. It's unprecedented because of the nature of this technology."
The U.S. Department of Justice intervened in the case to advance the argument that the Gertner should have used the remittitur process to cut the verdict rather than address the constitutionality of the damages award.
"But it is not our job to apply laws that have not yet been written," stated the Court in its Sony Corp. ruling.
"In [the Tenenbaum] case, the statute makes it clear that there's simply no exception that the defendant has argued for," Clair said.
Tenenbaum's oral argument time was shared by three people: Julie Ahrens, a representative of amicus the Electronic Frontier Foundation; Tenenbaum's trial lawyer, Harvard Law School professor Charles Nesson; and Harvard Law student Jason Harrow, who won the school's Ames Moot Court Competition.
Ahrens, associate director of the Fair Use Project at Stanford Law School and one of several co-authors of the EFF brief, argued that thousands of innovators are "chilled by the threat [of] an excessive damages award."
When Lynch asked if any of these arguments were presented to the jury, Aherns replied "no" and switched gears.
Aherns argued that "the implications of the decision go well beyond the case at bar." For that reason, she argued that the 1st Circuit should adopt the punitive damages guideposts set by the 1996 Supreme Court ruling in BMW of North America Inc. v. Gore.