A couple days ago I posted all of the appellate briefs filed by the parties and intervenors in what has surely become the most important of the file-sharing cases. By now I’m sure you’ve had the time to carefully peruse the hundreds of pages of dense legal arguments, so I’m not going to belabor the points made by rehashing them here (I swear I’ve read the briefs… well, a good chunk of them anyways).
Instead, what I’d like to do is go through and offer some commentary on the day’s proceedings, including the arguments, the attorneys, and the panel of judges. So without further ado…
Full disclosure: Just so you know what lens to view my commentary through, I thought I’d give a brief overview of my opinion of file-sharing litigation generally, as it no doubt colors my opinion of the relative strengths and weaknesses of the parties performances. In a word, I think that file-sharing litigation is essentially stupid for all involved. Even though legally I think they stand on solid ground, it’s stupid for the recording industry because it alienates exactly the people that they want to be marketing and selling their product to. It’s also a fairly expensive undertaking with little monetary gain at the end, and I think that the industry would have been much better served throwing those resources at technology and legal online distribution from the beginning. In other words, I think it’s bad business for the record companies. In fairness though, it seems like they finally realized that, and that’s why they’re no longer starting new cases (the MPAA and adult film industry might be able to learn a lesson there).
It’s stupid for the individuals mixed up in this litigation because so frequently their arguments, whether legal or equitable, simply don’t pass the laugh test. I absolutely believe that a penalty of up to $150,000 for downloading a single song isn’t fair, and I think that Congress should get in motion and get the law changed to reflect changes in technology and the reality that we now live in (whether that’s possible due to the influence of record industry lobbyists is a whole nother can of worms, but I digress), but as it’s written I think the law is clear, and I frankly think that any defendant silly enough not to settle for a few thousand dollars, or arrogant enough admit to willful infringement but claim that there was essentially no damage, is exactly the type of defendant statutory damages were intended to slap around a bit. Of course, I think that there are some valid legal issues that can be litigated in these cases (I’m no fan of the “making available” interpretation of distribution), but if you walk into court with unclean hands and try to use post-hoc equitable and constitutional arguments to avoid the consequences you were perfectly aware of, well that’s stupid too. Seriously this time, without further ado…
A wet and rainy day in Boston started off with a pretty dry argument, as Jeffrey Clair of the Department of Justice took to the podium to discuss a procedural question: whether the damages award should have been reviewed for constitutional permissibility under a due process standard (which is how Judge Gertner went about it), or whether it should have been analyzed under a common law remittitur standard (as the Government would have preferred). As Judge Lynch quickly elicited from Mr. Clair, the two standards are basically identical, so a change in the procedural tool wouldn’t have actually changed the analysis or the outcome. However, the United States took the position that Judge Gertner, when presented with the opportunity to reduce the damages award without resorting to the constitutional question, should have taken it. As Chief Judge Lynch also pointed out, it was the Plaintiffs’ position that common law remittitur was basically eliminated once the standard for review under the due process clause was established, so while this argument isn’t exactly exciting, we may have a very clear precedent on the issue here in the First Circuit very shortly, which is kind of interesting.
Mr. Clair was clearly concerned that his time was being taken up with this relatively unexciting topic though, and did his best to get to the constitutionality of the statutory damages provisions in the Copyright Act and their applicability to file-sharers as soon as he could. Once there, I think he did some of his best work. While his overall presentation style wasn’t anything flashy or exciting (I’m sensing a theme), I really thought he did well to respond to the Judge’s inquiries with valid points. In particular, I thought he did a great job of re-framing the issue in terms of the plain language of the statute when asked whether he thought Congress was aware that no individuals had ever been sued under the Copyright Act at the time they increased damages. I thought he did an even better job of again re-framing the issue when asked about the Constitutionality outcome of a defendant punished with the full statutory penalty for 1,000 songs. Mr. Clair briefly indicated that such an award would be constitutional, and then dove back into the facts of the instant case by pointing out all of the arguments presented to the jury regarding mitigation, and all of the ways that the jury could have reduced the award if they thought it was fair.
Again, my overall impression of Mr. Clair was that he was the consummate professional lawyer. Nothing flashy, not the most eloquent, but he got in there, he made his argument very clearly, and he was good on his feet in response to questions, especially when those questions seemed hostile.
Next up was Paul Clement for the Plaintiffs. Mr. Clement is a former Solicitor General, and it’s clear how he got both that position and his current one. He’s good at what he does. Like, really good. In fact I’d say that in many ways he’s the exact opposite of Mr. Clair, which I think helped to wake everyone in the courtroom up a bit. You can find the audio recording of the proceedings here, and get a sense of what I mean, though I don’t think you necessarily get the full effect just from the audio.
What I thought was so great about what Mr. Clement did is that he didn’t really get into the law too much, his briefs do enough of that. What I liked was that instead, his focus was on the facts, on portraying Mr. Tenenbaum in the light most favorable to his legal arguments, and on placing Mr. Tenenbaum’s actions in the context of what was happening in the industry so as to indicate why a big award was not only justified but important. After a brief interlude in which he had to explain to Judge Torruella exactly what file-sharing is, Mr. Clement I think did an excellent job of laying out exactly how willful Mr. Tenenbaum’s infringement was in light of the fact that he knew exactly what he was doing, exactly how illegal it was, and exactly what the penalties would be if he was caught. Given my stated position above, I think this argument was extremely persuasive, particularly when heard together with Mr. Clair’s argument that the jury had every opportunity to balance Mr. Tenenbaum’s culpability and willfulness against any and all mitigating factors. If you went into the argument thinking that recording industry is a ridiculous bully that wasn’t really harmed though, this argument was probably less persuasive.
What really impressed me about both Mr. Clair and Mr. Clement (and Harvard law student Jason Harrow), whether I would ultimately agree with their arguments or not, was their clear level of preparation. I thought all three did a tremendous job of not only advancing their prepared arguments, but of responding to the Judges’ questions intelligently, persuasively, and with relevant statutory and case citations. As I sat and listened, what struck me again and again was the incredible amount of time and effort that must have gone into reviewing every bit of information available about this case so that it was all on-hand, top-of-mind, and at the ready when the Judges asked their questions. With regard to Mr. Harrow particularly, I didn’t really agree with his arguments (I tend to agree with the statement implicit in Judge Thomas’ question (paraphrasing), “If Congress didn’t intend the statute to be used against individuals, why haven’t they done anything about it for 10 years?”), but I was very impressed by his ability to get up there, seemingly unfazed, and make them. In my own personal experience, I still get a few butterflies when I go before a Housing Court judge on a simple motion (not that Housing Court judges aren’t imposing). Mr. Harrow got up in front of three Appeals Court judges, got directly challenged on a number of points, and stood his ground. That’s really good for a seasoned practitioner. That’s damn impressive for a law student.
Unfortunately, the same was not to be for Professor Charles Nesson. I’ve disagreed with basically everything that Prof. Nesson has done throughout this entire run of litigation, so take what I have to say here in that light, but I think that he did his client a grave disservice by getting up in front of an Appeals Court panel, making a largely theory-based argument (instead of a legal argument), getting off track and claiming that his client didn’t receive a fair trial (which everyone then agreed was going too far), and then analogizing his client’s conduct to “willful jaywalking.” Willful jaywalking is not a defense, it is not a legal theory that an Appeals Court could hang an opinion on, even if they wanted to. Granted, Mr. Harrow made the defenses’ legal arguments, and made them well, but that doesn’t mean that the esteemed professor, the guy in charge, should abdicate his responsibility to make viable arguments, to present an actual defense. The man didn’t even wear a suit to the proceedings. I understand that clothing isn’t necessarily the most important thing, but there was also the very distinct impression from the bench that they just didn’t take Prof. Nesson or his arguments very seriously. Maybe dressing appropriately, showing a little deference, would have shown the Court that he was taking this seriously and in-turn caused them to take him a little more seriously. He’s also the only speaker that left time on the clock. So I wasn’t a fan of his argument.
Finally, I just wanted to comment quickly on Ms. Julie Ahrens of the Electronic Frontier Foundation. I think that she had a terrific equitable argument to make that would be very persuasive in the context of lobbying for legislation to change the Copyright Act and its statutory damages provisions. Unfortunately, I don’t think it was a particularly prescient argument to make before the First Circuit Court of Appeals, and I think that the Court agreed. This led to very strong push back from Chief Judge Lynch, who pointed out that all of the equitable arguments could have been made to the jury and were therefore essentially moot on appeal, so much so that Ms. Ahrens at one point felt the need to ask if she could even continue her argument. Again though, I think it was a good argument and well made, maybe just the wrong forum and procedural posture for it.
As I was walking out of the Courtroom (along with everyone else, the subsequent litigants must have felt quite rebuffed), I heard someone saying to Mr. Tenenbaum that they thought two of the three judges were on his side, and that he was definitely going to win. I don’t agree with that sentiment. I thought the Judges asked tough questions of all the litigants that went to the heart of their arguments because that’s what judges are supposed to do at oral arguments. They poke, they prod, they see if there are weaknesses. I think they did that to all the litigants, but ultimately my very distinct sense walking out was that things do not look good for Joel Tenenbaum.