holder may be real, and even substantial, but, under the statute, the record companies do not even
have to prove actual damage.”^313
Following a trial, the jury found that Tenenbaum had willfully infringed the plaintiffs’
copyrights and imposed statutory damages of $22,500 per song, yielding a total award of
$675,000.^314 In response to the defendant’s motion for a new trial or remitter, the trial court held
that an award of that size, given that Tenenbaum reaped no pecuniary reward from the
infringement and the infringing acts caused the plaintiffs minimal harm, violated the due process
clause of the Constitution as excessive. The court found the award to be far greater than
necessary to serve the government’s legitimate interests in compensating copyright owners and
deterring infringement and that, in fact, it bore no meaningful relationship to those objectives.
Accordingly, the court reduced the jury’s award to one-tenth the amount, or $2,250 per infringed
work (three times the statutory minimum), for a total award of $67,500. The court noted that
such amount was still more than the court itself might have awarded in its independent judgment,
but the amount was the greatest amount that the Constitution would permit given the facts of the
case.^315 The court also reaffirmed its previous ruling rejecting Tenenbaum’s fair use defense.^316
On appeal, the First Circuit reversed, finding that the district court erred when it bypassed
Tenenbaum’s remittitur arguments based on the excessiveness of statutory damages and reached
the constitutional due process issue. The court noted that, under established precedent, a trial
court’s reduction of compensatory damages must, to avoid Seventh Amendment error, allow the
plaintiff a new trial. Punitive damage awards, by contrast, may be reduced on due process
grounds without offering the plaintiff a new trial without running afoul of the Seventh
Amendment. In bypassing remittitur and the offer of a new trial, the district court had assumed
that statutory damage awards should be treated largely as punitive, not compensatory, awards for
Seventh Amendment purposes.^317 But the First Circuit found that statutory damages have both a
compensatory and punitive element, and further noted that the Supreme Court had ruled in the
Feltner case^318 that the Seventh Amendment provides a right to a jury trial on all issues pertinent
to an award of copyright statutory damages. Given these important Seventh Amendment issues,
the First Circuit held that the district court had erred in not ordering remittitur, which would have
afforded a number of possible outcomes that could have eliminated the constitutional due
process issue altogether, or at the very least materially reshaped it – e.g., by altering the amount
(^313) Id. at 237.
(^314) Sony BMG Music Entertainment v. Tenenbaum, 721 F. Supp. 2d 85, 87 (D. Mass. 2010), rev’d, 660 F.3d 487,
514 (1st Cir. Sept. 16, 2011), cert. denied, 132 S. Ct. 2431 (2012).
(^315) Id. at 89-90.
(^316) Id. at 98-99.
(^317) Sony BMG Music Entertainment v. Tenenbaum, 660 F.3d 487, 514 (1st Cir. 2011), cert. denied, 132 S. Ct. 2431
(2012).
(^318) Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).