- Associated Press - Monday, September 19, 2011

BOSTON (AP) - An appeals court reinstated a $675,000 verdict against a Boston University student who illegally downloaded 30 songs and shared them on the Internet, but left the door open for the trial judge to reduce the award again.

Joel Tenenbaum, of Providence, R.I., was sued by the Recording Industry Association of America, representing four record labels, for illegally sharing music on peer-to-peer networks. In 2009, a jury ordered Tenenbaum to pay $675,000, or $22,500 for each of songs he illegally downloaded and shared.

U.S. District Judge Nancy Gertner later reduced the award to $67,500, finding the original penalty “unconstitutionally excessive.”

In his appeal, Tenenbaum sought to overturn the penalty. Sony BMG Music Entertainment, Warner Brothers Records Inc. and the other record labels represented by the RIAA asked that the full award be reinstated.

In a ruling issued late Friday, the 1st U.S. Circuit Court of Appeals said that Gertner made a mistake by delving into a constitutional question when common law gave her the tools to reduce the judgment.

Common law practice allows a judge to reduce a jury verdict deemed excessive. When that is done, the winning party can either pay the smaller amount or demand a new trial. Had Gertner invoked common law first, as she should have done, Sony would have had that choice, the 1st Circuit said in its ruling.

The court sent the case back to the lower court to reconsider Tenenbaum’s request to reduce the judgment based on excessiveness without deciding any constitutional challenge.

Tenenbaum, who is pursuing a doctorate in physics, said he was surprised by the ruling.

“I am kind of dumbstruck,” Tenenbaum said. “This is obviously more absurd than it was before.”

His attorney, Harvard Law professor Charles Nesson, declined to comment on the ruling.

In his appeal, Tenenbaum argued that the U.S. Copyright Act is unconstitutional and that Congress did not intend the law to impose liability or damages when the copyright infringements amount to “consumer copying.” He also said Sony was not entitled to monetary damages without a showing of actual harm, and he claimed there was no harm by his downloading and sharing of songs.

The 1st Circuit said none of those arguments have merit.

Lawyers for the Recording Industry Association of America argued that the economic impact of illegal downloading is much greater than the sharing of one song. They said illegal downloading hurt the recording industry by reducing income and profits.

“We are pleased the court agreed with us that the finding of liability was correct and that the District Court erred in finding the verdict unconstitutional,” Jennifer Pariser, senior vice president for litigation and legal affairs for the group said in a statement.

In the only other music-downloading case against an individual to go to trial, a judge in July reduced the penalty imposed on a Minnesota woman for illegally sharing 24 songs online, from $1.5 million to $54,000.

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