Over at the Washington Legal Foundation, Ben Sheffner of Copyrights & Campaigns just published a thoughtful Legal Backgrounder entitled Due Process Limits on Statutory Civil Damages? Ben makes an interesting point. In my own post on Judge Gertner's recent Opinion in Tenenbaum, I argued that Judge Gertner's excuses for reducing the jury's statutory-damage award are so absurdly illogical and lawless that she ended up pretending that college guys like Joel Tenenbaum are just inevitably "risk averse."

Ben takes the opposite tack by showing that that Judge Gertner's analysis makes no sense even if you try to take her "findings" seriously. Ben correctly notes that if you accept Judge Gertner's claim that actual damages were $1/song, then her claim that her $2,250/song award reflected the trebling of actual damages is dead wrong: "[S]he did not treble the amount of actual damages; she actually multipled it by 2,250, an act that seems particularly arbitrary, and that finds little support in logic or case law."

Judge Gertner's bizarre ruling thus makes no sense from any perspective. Her fundamental problem may be that her hand-picked defense counsel's trial strategy involved making jurors guess about actual harm and hoping that they would guess low. Under the dire circumstances of Tenenbaum, that choice may have been one of the less-deranged elements of the "defense strategy," but it was still a very high-risk tactic that could obviously backfire—particularly because statutory damages are intended to let juries deal with pirates who make them guess and the Plaintiffs did submit expert testimony about the cascade-effects of file-sharing and the probable (high) costs of a license to engage legally in file-sharing.

No doubt Judge Gertner, having become so personally involved in setting up Joel Tenenbaum to take the resulting $675,000 fall, would like to imagine that it is unconstitutional for her hand-pick defense counsel's high-stakes gamble to backfire. Appellate jurists are more likely to conclude that in a case like Tenenbaum, the proper remedy is not a reduced award, but for Tenenbaum to file a malpractice claim against Harvard Law School's Berkman Center for the Study of the Internet and Society.

Consequently, when the Tenenbaum Plaintiffs can finally settle this case-that-never-should-have-been-litigated, perhaps they should ask Tenenbaum to sign over to them (if he can) the malpractice claim that may be his most valuable asset. Granted, Tenenbaum probably signed a waiver, but only the most remarkable waiver should manage to immunize the slow-motion-train-wreck "defense strategy" that Tenenbaum's counsel so openly pursued—while the Berkman Center stood by and did nothing.