Sony BMG Music Entertainment v. Tenenbaum doesn't attract much media attention these days, but the case is still alive and kicking. Attorneys for file sharer Joel Tenenbaum filed a petition for a rehearing in the First Circuit Court of Appeals.
Two months ago, Tenenbaum suffered a setback when the Court of Appeals reversed a judge's decision to reduce the jury's award of $675,000 by 90 percent. The court ruled that Judge Gertner had erred when she reduced the jury award on due process grounds. Instead, the court believed Judge Gertner should have used a legal procedure called a remittitur, which reduces the amount of a jury award and gives the plaintiff the choice of accepting the reduced award or submitting to a new trial.
Filed October 312, the petition asks for rehearing en banc, which would mean all members of the appellate court would hear the case rather than a usual panel of three judges.
The petition explains that the reason Tenenbaum seeks a hearing is "that it is unconstitutional to instruct a jury that it can return an unconstitutionally excessive award. To instruct the jury that it may ascribe an award in a range of up to $4,500,000 against a noncommercial copyright infringer is punitive, excessive, not authorized by statute, and a denial of due process."
The jury's original award -- $22,500 per song - fell within the range of statutory damages set by Congress. But Tenenbaum's team portrays him as a non-commercial copier who engaged in benign infringement. "For consumer copiers, any copying or distribution is only incidental to their purpose of expanding their personal music collection," the petition says.
Tenenbaum himself has implied his infringement has benefitted the record labels that sued him. "I often have bought music as a result of the free exploration I've done," he told TorrentFreak. "In that respect, I'm much like the average downloader, who actually spends more money on music than people who don't download at all."