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College Entertainment Coordinator and Infringement Facilitator FACTS Joel Tenenbaum was a student at Goucher College who developed file-sharing software that permitted 30 music recordings


College Entertainment Coordinator and Infringement Facilitator




Joel Tenenbaum was a student at Goucher College who developed file-sharing software that permitted 30 music recordings copyrighted by Sony (plaintiffs) to be downloaded and distributed without Sony's authorization. Sony brought suit for damages and a permanent injunction. The district court entered judgment against Tenenbaum as to liability. The jury found that Tenenbaum's infringement of the copyrights at issue was willful and awarded Sony statutory damages of \$ 22,500for each infringed recording. Tenenbaum's request for a reduction in damages (remittitur) from \$ 675,000was granted by the trial court and the damages were reduced by a factor of 10 .\!Tenenbaum's request for a dismissal on the grounds that his infringement was not willful was denied. Both Sony and Tenenbaum appealed.




LYNCH, Chief Judge


Tenenbaum was an early and enthusiastic user of peer-to-peer networks to obtain and distribute copyrighted music recordings. He began downloading and distributing copyrighted works without authorization in 1999


Because it enabled copyright infringement, see A \mathcal{E} M Records, Inc. v Napster, Inc., 239 F.3d 1004 ( 9 th Cir. 2001 ), the Napster network was shut down in 2001 . This did not stop Tenenbaum from downloading and distributing copyrighted works; he instead began using other peer-topeer networks for the same illegal purposes. These networks included AudioGalaxy, iMesh, Morpheus, Kazaa, and Limewire. Tenenbaum shifted to these other networks after Napster's termination despite his knowledge that Napster was forced to close on account of a lawsuit brought against it for copyright infringement.


Tenenbaum continued to download and distribute copyrighted materials through at least 2007 During that time span he accessed a panoply of peer-to-peer networks for these illegal purposes from several computers. From 1999 until 2002, he primarily downloaded and distributed copyrighted works to and from his desktop computer at his family's home in Providence. He left home to attend Goucher College in Baltimore, Maryland, in 2002,at which point he began using a laptop to download and distribute copyrighted works. Following his graduation from Goucher in 2006, he began using a second laptop for these purposes in tandem with his other computers. Over the duration of Tenenbaum's conduct, he intentionally downloaded thousands of songs to his own computers from other network users. He also purposefully made thousands of songs available to other network users. At one point in time in 2004 alone, Tenenbaum had 1153 songs on his "shared-directory" on the Kazaa network. Most of the networks Tenenbaum used had a "traffic tab" that informed him of the frequency with which other users were downloading his shared files. Tenenbaum regularly looked at the traffic tab, and he admitted it definitely wasn't uncommon" for other users to be downloading materials from his computer.


While Tenenbaum was at Goucher College in 2002 his father, Dr. Arthur Tenenbaum, called him to warn him that his use of peer-to-peer networks to obtain and distribute music recordings was unlawful. Dr. Tenenbaum knew that his son was illegally downloading music because, prior to leaving for college, Tenenbaum had showed his father the array of songs that could be downloaded from the Kazaa network. After Dr. Tenenbaum became aware that lawsuits were being brought against individuals who used file-sharing programs to download and distribute music, he instructed Tenenbaum not to continue to engage in such conduct. Dr. Tenenbaum testified that, during their conversation, Tenenbaum did not appear concerned about the consequences of his actions. Despite his father's request, Tenenbaum continued his illegal activity.


Tenenbaum also received direct warnings from Goucher College. Each year Tenenbaum received a Goucher student handbook warning that using the college's network to download and distribute copyrighted materials was illegal, but he did so anyway. The handbook also warned that illegally downloading and distributing music files could subject the copyright infringer to up to \$ 150,000 of liability per infringement, alerting Tenenbaum to his potential exposure for violating the law. Tenenbaum received handbooks containing similar language during each of his four years at Goucher, but was unfazed and continued.


Tenenbaum also knew the college took this seriously and had itself acted to stop this illegal activity. By the end of his undergraduate studies at Goucher, the school had implemented so many technological restrictions on its network-which he knew were designed to prevent illegal downloading of music files - that peerto-peer programs "wouldn't work at all."


The Tenenbaums' Internet service provider at home in Providence, Cox Communications, also warned against using the Internet to illegally infringe copyrighted materials. In a September 2005 letter, plaintiffs themselves informed Tenenbaum that he had been detected infringing copyrighted materials and notified him that his conduct was illegal. The letter stated: "We are writing in advance of filing suit against you in the event that you have an interest in resolving these claims." The letter urged Tenenbaum to consult with an attorney immediately, and explained that the recording companies were prepared to initiate a legal action against Tenenbaum because of the severe impact of his actions on the industry:


Copyright theft is not a victimless crime. People spend countless hours working hard to create music-not just recording artists and songwriters, but also session players, backup singers, sound engineers and other technicians. In addition, the music industry employ thousands of other people, such as CD-plant workers, warehouse personnel, record store clerks and developers of legitimate online music services. They all depend on sale of recordings to earn a living. So do record companies, which routinely invest millions of dollars to discover and sign promising artists, and then to produce and market their recordings. In addition, piracy eats away at the investment dollars available to fund new music and, in effect, erodes the future of music.


The letter also instructed Tenenbaum to preserve any relevant evidence including "the entire library of recordings that you have made available for distribution as well as any recordings you have downloaded. .. ."


After receiving this letter, Tenenbaum nonetheless took his laptop computer for repairs and had its operating system reinstalled and its hard drive reformatted. At trial, Tenenbaum maintained that he only had work done on the computer because "the thing wouldn't run," and that he instructed the computer repairman not to tamper with the music files stored on his computer.


Despite these warnings and his knowledge that he was and had been engaging in illegal activity which could subject him to liability of up to \$ 150,000 per infringement, Tenenbaum continued the illegal downloading and distribution of copyrighted materials until a full two years after receiving the letter from Sony. He stopped his activity only after this lawsuit was filed against him.


Strong evidence established that Tenenbaum lied in the course of these legal proceedings in a number of ways. In his initial responses to Sony's discovery requests, Tenenbaum represented he "had no knowledge or recollection of online media distribution systems used or any dates" of such use. He also denied creating or using the "sublimeguy14@ kazaa" account name that he had used to access various peer-to-peer networks, and he denied any knowledge of whether a peer-to-peer network had been installed on his computer.


At trial, however, Tenenbaum admitted that each of these statements he had made was false. He made numerous admissions in his testimony as to the scope of his conduct from 1999 until 2007


Before the trial, Tenenbaum also attempted to shift responsibility for his conduct to other individuals by claiming they could have used his computer in order to illegally download and distribute the copyrighted works. These individuals included a foster child living in his family's home, burglars who had broken into the home, his family's house guest, and his own sisters. His sisters and others he blamed testified that they had never illegally downloaded music and had no knowledge of who installed the file sharing software on Tenenbaum's computer.


We affirm the finding of liability against Tenenbaum and in favor of plaintiffs. We affirm the injunctive relief. We vacate the district court's due process damages ruling and reverse the reduction of the jury's statutory damages award. We reinstate the jury's award of damages and remand for consideration of defendant's motion for common law remittitur based on excessiveness.


If, on remand, the court allows any reduction through remittitur, then plaintiffs must be given the choice of a new trial or acceptance of remittitur.


1. What does the court highlight as proof of his intent to infringe the copyright?

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