of the award at issue or even the evidence on which to evaluate whether a particular award was
excessive.^319
The court also rejected the defendant’s argument that no statutory damages can be
awarded where harm caused by the defendant has not been proved, and that statutory damages
cannot be awarded unless reasonably related to actual damages.^320 The court further rejected a
number of challenges to the district court’s jury instructions, including a challenge to the
instruction that willful infringement means that a defendant had knowledge that his actions
constituted copyright infringement or acted with reckless disregard for the copyright holder’s
rights. The First Circuit joined precedent from sister circuits that had unanimously and routinely
found that an infringement is willful under Section 504 if it is knowing or in reckless disregard
of the copyright holder’s rights.^321
Accordingly, the court affirmed the finding of liability against Tenenbaum and the
injunctive relief, but vacated the district court’s due process damages ruling and reversed the
reduction of the jury’s statutory damages award. The court reinstated the jury’s award of
damages and remanded for consideration of the defendant’s motion for common law remittitur
based on excessiveness. If on remand, the district court allowed any reduction through
remittitur, the First Circuit ruled that the plaintiffs must be given the choice of a new trial or
acceptance of remittitur.^322
On remand, the district court ruled there was no basis for common law remittitur of the
award because it was not grossly excessive, inordinate, shocking to the conscience of the court,
or so high that it would be a denial of justice to permit it to stand. Tenenbaum had personally
received multiple warnings from various sources across several years about downloading and
distributing copyrighted materials, including the fact that his activities could subject him to
liability of up to $150,000 per infringement. There was thus ample evidence of willfulness on
his part and the need for deterrence based on his blatant contempt of warnings and apparent
disregard for the consequences of his actions.^323 Turning next to the legal principles set forth by
the First Circuit for evaluating a due process challenge to the award, the court ruled that under
the applicable standard – a statutory damages award comports with due process as long as it
cannot be said to be so severe and oppressive as to be wholly disproportioned to the offense of
obviously unreasonable – the award must withstand a due process challenge. The court
concluded that, given the deference afforded Congress’ statutory award determination and the
public harms it was designed to address, the particular behavior of Tenenbaum in the case, and
the fact that the award was not only within the range for willful infringement but also below the
(^319) Tenenbaum, 660 F.3d at 511, 514-15.
(^320) Id. at 502, 506.
(^321) Id. at 507.
(^322) Id. at 515.
(^323) Sony BMG Music Entertainment v. Tenenbaum, 2012 U.S. Dist. LEXIS 119243 at *6-10 (D. Mass. Aug. 23,
2012), aff’d, 719 F.3d 67 (1st Cir. 2013).