WASHINGTON D.C. — Late Friday, Judge Nancy Gertner of the United States District Court for the District of Massachusetts held that the $675,000 or $22,500/song jury verdict in Sony BMG Music v. Tenenbaum, (Tenenbaum), was unconstitutionally excessive. The following statement can be attributed to Thomas D. Sydnor II, Director of the Center for the Study of Digital Property and a Senior Fellow at The Progress & Freedom Foundation:

In Tenenbaum, Judge Gertner got four things wrong: the law, the facts, the technology, and the math. The resulting cascade of reversible errors has led to a ruling which harms copyright holders and consumers and diminishes incentives to create. It should be appealed, and overturned.

For example, the jury's verdict found that Tenenbaum intentionally facilitated KaZaA and Grokster's deliberate commercial piracy: To get around this, Judge Gertner held that a commercial piracy syndicate's willful distributor acts "noncommercially" if he is dumb enough to do the syndicate's dirty work in exchange for free music. This legal sleight-of-hand only encourages foreign corporations to try to use consumers like Joel Tenenbaum as human shields against the enforcement of the federal civil rights of America's world-leading creative artists and industries, a result contrary to the law.

Similarly, perhaps the best way for the jury to assess merely compensatory damages would have been to estimate the royalty that Tenenbaum would have had to pay in order to acquire the legal right to distribute hit songs globally. In effect, Judge Gertner has thus held that it is unconstitutional for artists to charge more than $2,250 for global-distribution rights to hit songs, again a result contrary to the law...

The Tenenbaum Plaintiffs should seek appellate review of Judge Gernter's seeming affront to the laws, facts, and jury verdict. All three federal juries to have considered the question previously have found that willful file-sharing by defendants who lie under oath to escape punishment warrant per-song damage awards greatly exceeding $2,250/song. Their wisdom should be vindicated on appeal.

Thomas Sydnor is available for comment. Please contact Mike Wendy at mwendy@pff.org for more information.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.