tenenbaumGiven the option of blazing legal trails or not racking up legal costs, would the prospect of paying the equivalent of a really nice house or the full ticket for an Ivy undergrad and grad education prove persuasive? He’s argued doggedly but yet another appeal has gone against Joel Tenenbaum, the aspiring physicist who has fought a music industry campaign against illegal digital music downloads.

The U.S. Court of Appeals for the First Circuit, for the second time, has affirmed the jury verdict of $675,000, or $22,500 per downloaded mp3 single against Tenenbaum, who has said in interviews that he could have settled his case for $3,000.

His persistence hasn’t won the grad student much in court, where the record indicates he’s stuck to conduct that hasn’t helped his battle against a music industry anti-piracy strategy carried out in litigation and penalties.

In 2011, the appellate court had upheld a penalty against Tenenbaum for copyright infringement.

Tenenbaum, a trial court had found, had knowingly downloaded and distributed copyrighted music without authorization, using various peer-to-peer networks from 1999 to at least 2007. He was sued by Sony BMG and other record labels in August, 2007, for statutory damages and injunctive relief over thirty counts of unauthorized music downloads.  A jury awarded Sony $22,500 for each of Tenenbaum’s thirty violations (fifteen percent of the statutory maximum), for a total award of $675,000.

Tenenbaum moved for a reduction in the award, arguing that remittitur was appropriate and that the award was so high that it violated his right to due process.  The district court first bypassed the issue of remittitur and held that the award violated due process, taking a whole zero off the penalty and reducing it to $67,500.  That decision, however, was vacated by the Appeals Court, which held that the principle of constitutional avoidance required the court to address the issue of remittitur before determining whether the award violated due process.  The district court decided that remittitur was inappropriate and reinstated the original award of $675,000, saying it was reached through due process.  In his latest appeal, Tenenbaum contested the constitutionality of the damage award but not the decision on remittitur.

The court, in seeking guidance on review of statutory damages, here under the Copyright Act, found its standard in St. Louis, I.M. & S. Ry. Co. v. Williams.  The case involving a railroad and fines for overcharges requires a determination as to whether the penalty prescribed against the defendant is so severe and oppressive as to be disproportionate to the offense and obviously unreasonable.

The court considered evidence Tenenbaum’s infringement — that he ignored numerous warnings and made thousands of songs available for illegal download. The court found that evidence “easily justifies the conclusion that his conduct was egregious,” the very actions that Congress set out to deter with its amendment of the Copyright Act.  Tenenbaum unsuccessfully argued that his $675,000 penalty violated due process because it was not tied to the actual injury he caused, which he estimated to be not more than $450 or the cost of thirty albums at $15 each. The court took into consideration  the deterrent effect of statutory damages and evidence of Sony’s harm, finding via Williams that the penalty need not be confined or proportioned to loss or damages tied to Tenenbaum’s actions.

Besides his appellate filings, Tenebaum’s attorneys also unsuccessfully had sought review by the U.S. Supreme Court of this case, for which this defendant has sought wide public attention, including via a website. The case, defendant and the legal strategy here, however, also have garnered their share of negative coverage, with one leading tech outlet calling it a “train wreck” with bad facts resulting in bad law.