Onto Appeal

By Jason Harrow & Phil Hill (JFB legal team, generation 3)

It has been nearly six months since the trial court judge in our case reduced the $675,000 jury verdict against Joel down to $67,500. After many years of wrangling and a week-long trial in the summer of 2009, that decision finally ended the proceedings before Judge Gertner in the district court.

Both sides appealed to the First Circuit Court of Appeals, which is the federal appeals court that sits in Boston. The RIAA — armed with a new, high-powered legal team that now includes Paul Clement, who was the third-ranking official in the George W. Bush Department of Justice — appealed Judge Gertner’s reduction. In a brief filed in October, they argued that the judge had no power to reduce the verdict. Their brief makes the strange case that a $67,500 award against Joel for sharing 30 songs — with a total retail value of $30 — is not enough for them.

This week, we filed this response. The brief was written by Professor Nesson with the assistance of five law students: Jason Harrow, Phillip Hill, Andrew Breidenbach, Eric Fletcher, and Nathan Lovejoy. It asks the First Circuit to consider four main issues.

First, we argue that the district court’s reduced award of $67,500 for thirty infringements remains unconstitutionally excessive in comparison the conduct. We believe that the district judge was incorrect that the constitution permits a maximum award of $2,250 per song that can be multiplied across an unlimited number of infringements. That would allow the RIAA or any other plaintiff to run up enormous awards simply by claiming more infringements. Instead, we believe the award against Joel should be analyzed in the aggregate — and when that’s done, it becomes clear that hitting Joel with a $67,500 award for sharing thirty popular songs on KaZaA remains unacceptably high.

Second, we make the case that the reason the jury’s award was so astronomical in the first place is partially because the jury was tainted with improper instructions. We do not believe that the jury should have been told that the maximum amount per song was $150,000. After all, the maximum under the law should be reserved for the most egregious infringers — often illegal commercial enterprises with a history of copyright suits. Telling the jury what the penalty is for the worst infringers improperly “anchored” it to think that anything less than a $150,000 per song was in fact a reasonable compromise and sanctioned by Congress for this specific conduct. Moreover, the trial was littered with testimony about how damaging worldwide filesharing was to the entire recording industry. But the district court failed to remind the jury of the obvious constitutional principle that Joel can only be punished for harm he caused, and not the aggregate harm caused by the millions of filesharers around the globe.

We also make two bigger picture arguments to highlight how the RIAA’s campaign against consumer copiers has grossly distorted the entire foundation of copyright law. Our brief delves into an extensive historical analysis to show that statutory damages — the remedy sought here — were never meant to apply to not-for-profit individual consumers like Joel. Historically, Congress has opted to shield consumer copiers from liability, not expose them.  Our examination of copyright law for the last two centuries shows that the damages scheme that Joel was prosecuted under exists to solve problems of proving significant harms that are difficult to quantify — not to authorize wildly disproportionate punishments for ordinary consumers like Joel. Tellingly, until the start of the RIAA’s litigation campaign in 2003 no copyright case had ever been heard anywhere involving a corporate plaintiff suing a consumer copier.  We ask the Court of Appeals not to let the RIAA unilaterally upset this traditional understanding.

Our final argument is the most legally technical. It begins with a 1998 Supreme Court case called Feltner, where the Supreme Court declared that the Seventh Amendment provided a right to a jury trial in copyright cases involving statutory damages, despite the fact that Congress wanted judges alone to operate this complicated scheme. The current copyright statute was written with the understanding that judges had developed expertise in administering copyright cases, so no explicit guidance was necessary in the text.  However, displacing a judge with a jury, without altering the statutory text, leaves the statute hopelessly indistinct.  Congress has never gone back and amended the scheme and the few courts that have looked at the issue have just assumed that the statute remains in place with the word “jury” artificially written in. We ask the Court of Appeals to reject this argument, and hold that the RIAA cannot get statutory damages until Congress revisits this issue and passes a constitutional statute.

The RIAA gets a chance to respond to these arguments in a brief that is due at the end of January. We then get one more brief that will serve as the final word. Once all the briefing is complete, the First Circuit will set a date for oral argument. After that, a decision could come at any time.

Of course, we’ll keep you posted.

In the meantime, we hope you have a very happy new year. Spread the word about the brief, and feel free to contact us at joelfightsback@gmail.com with any feedback.