Supreme Court Passes on File-Sharing Case, but Still No End Is in Sight

By Ben Sisario
The New York Times

May 21, 2012

The Supreme Court has declined to hear an appeal in one of the record industry’s longest-running cases over unauthorized file-sharing.

The court effectively let stand a jury’s $675,000 damages award against Joel Tenenbaum, a former Boston University student who admitted to downloading some 30 songs on the unlicensed file-sharing service Kazaa.

But even this decision is not likely to be the end. The case, which started in 2007, so far has outlasted its original judge and has drawn the controversial defense services of a renowned Harvard law professor.

Of the 12,000 lawsuits the major record labels filed against file-sharers in the mid-2000s, Mr. Tenenbaum’s is one of only two to go to trial, and the twists in the case are a mini-education in the law.

A jury set damages against Mr. Tenenbaum of $675,000, or $22,500 per song, choosing that amount from a range in federal copyright law from $750 per instance of infringement to $150,000. The original judge in the case, Nancy Gertner of United States District Court in Boston, said the amount was unconstitutionally high and reduced it to a total of $67,500. When her decision, in turn, was reversed by an appeals court, it raised the risk of a second trial against Mr. Tenenbaum.

Mr. Tenenbaum’s lawyer, the Harvard professor Charles Nesson [ http://www.nytimes.com/2009/08/11/us/11download.html ], tried to challenge the process, saying that it would force his client “down an endless litigation rat hole.” In the only other such case to reach trial, Jammie Thomas-Rasset — a mother of four from Minnesota — has been through three trials, with further proceedings at an appeals court to begin next month.

The Supreme Court refused to hear the Tenebaum case, noting in its order on Monday only that Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer “took no part” in the decision.

In a brief statement, the recording industry association said, “We’re pleased with the decision.” But Mr. Nesson, whose unorthodox methods in litigating the case have been criticized [ http://www.nytimes.com/2009/08/11/us/11download.html ] — for example, he had Mr. Tenenbaum admit in court that he had downloaded the files, after saying under oath that he hadn’t — said the continued publicity for the case suited the recording industry’s goals at his client’s expense.

“From a P.R. point of view, it’s been a grand success for the plaintiff,” Mr. Nesson said in an interview on Monday. “Their objective here is to educate youth that you must pay for music, and litigation becomes the way of projecting that message out to the world.”

The case is now before Judge Rya W. Zobel of District Court in Boston, who must decide on damages. (Judge Gertner, who first presided in the case, has since retired from the bench and joined the faculty of Harvard Law School.)

Of course, Mr. Tenenbaum and the recording industry group could choose to settle.