IPcentral Weblog
  The DACA Blog
  Institutions
     
  Tanks
     
  Blogs
     
  Mags
     

Wednesday, August 11, 2010

 
Tenenbaum: Ben Sheffner Concludes That Judge Gertner's Ruling Made No Sense from Any Perspective
(previous | next)
 

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.

posted by Thomas Sydnor @ 1:22 PM | Copyright , IP , Internet

Share |

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(1)

Comments

the Boston Globe reported in 2002 that he had not been involved in the details of many deals toward the end of his Bain experience: "These days," Second, ,Michael Jackson would have been 55 today Political Editor, he received the White House Correspondents Associations Merriman Smith award for deadline writing about the presidency and the National Press Clubs award for political analysis. including your name, go here: An email will be sent to you with directions on how to reset your password. That was a good way to get feedback from the workforce about what they think is important and what agency leadership should focus on. Then we allowed the NASA workforce to vote on which questions they would like to see included.

Posted by: Michael Kors Outlet at January 13, 2014 12:20 AM

Post a Comment:





 
Blog Main
RSS Feed  
Recent Posts
  EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
New OECD Study Finds That Improved IPR Protections Benefit Developing Countries
Hubris, Cowardice, File-sharing, and TechDirt
iPhones, DRM, and Doom-Mongers
"Rogue Archivist" Carl Malamud On How to Fix Gov2.0
Coping with Information Overload: Thoughts on Hamlet's BlackBerry by William Powers
How Many Times Has Michael "Dr. Doom" Copps Forecast an Internet Apocalypse?
Google / Verizon Proposal May Be Important Compromise, But Regulatory Trajectory Concerns Many
Two Schools of Internet Pessimism
GAO: Wireless Prices Plummeting; Public Knowledge: We Must Regulate!
Archives by Month
  September 2010
August 2010
July 2010
June 2010
  - (see all)
Archives by Topic
  - A La Carte
- Add category
- Advertising & Marketing
- Antitrust & Competition Policy
- Appleplectics
- Books & Book Reviews
- Broadband
- Cable
- Campaign Finance Law
- Capitalism
- Capitol Hill
- China
- Commons
- Communications
- Copyright
- Cutting the Video Cord
- Cyber-Security
- DACA
- Digital Americas
- Digital Europe
- Digital Europe 2006
- Digital TV
- E-commerce
- e-Government & Transparency
- Economics
- Education
- Electricity
- Energy
- Events
- Exaflood
- Free Speech
- Gambling
- General
- Generic Rant
- Global Innovation
- Googlephobia
- Googlephobia
- Human Capital
- Innovation
- Intermediary Deputization & Section 230
- Internet
- Internet Governance
- Internet TV
- Interoperability
- IP
- Local Franchising
- Mass Media
- Media Regulation
- Monetary Policy
- Municipal Ownership
- Net Neutrality
- Neutrality
- Non-PFF Podcasts
- Ongoing Series
- Online Safety & Parental Controls
- Open Source
- PFF
- PFF Podcasts
- Philosophy / Cyber-Libertarianism
- Privacy
- Privacy Solutions
- Regulation
- Search
- Security
- Software
- Space
- Spectrum
- Sports
- State Policy
- Supreme Court
- Taxes
- The FCC
- The FTC
- The News Frontier
- Think Tanks
- Trade
- Trademark
- Universal Service
- Video Games & Virtual Worlds
- VoIP
- What We're Reading
- Wireless
- Wireline
Archives by Author
PFF Blogosphere Archives
We welcome comments by email - look for a link to the author's email address in the byline of each post. Please let us know if we may publish your remarks.
 










The Progress & Freedom Foundation