Want to become a practicing lawyer? Don’t go to Harvard! Nesson and Tenenbaum again.

Some of my favorite and most respected former colleagues in practice went to Harvard Law School, but, based on what I’ve been seeing out Charlie Nesson in his role defending Joel Tenenbaum in Sony BMG Music v. Tenenbaum, I have to seriously wonder what Harvard is teaching about the actual practice of law.

I took Nesson to task recently for using his role as lawyer in the case to fight a crusade against the music industry, not to give his client the best defense possible. That attitude alone destroys my confidence in Nesson’s ability to train anyone to be a lawyer.

Now Nesson has proven he can’t write a brief. Yesterday on behalf of Tenenbaum he filed in the court that produced the $675,000 judgment against his client a document entitled Defendant’s Opposition to Entry of Judgment and Injunction (pdf)(the “Brief”). There are some non-frivolous arguments somewhere in that self-righteous screed, but they’re so buried in Nesson’s preference for rhetorical flourish over lawyerly detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on his incompetence. A lawyer’s job is to win the judge to his client’s side through persuasive reason and argument; it is not to throw a mess at the judge that may or may not contain winning arguments and leave it to the judge to find those winning arguments.

It’s a dirty little secret that lawyers don’t like to make too much of: lawyers, not judges, win and lose cases. Lawyers don’t like to make too much of it because they want judges to believe they’re the ones from on high pronouncing judgment. But if you convince the judge you’re right and give him the tools to rule your way, you’ll win. It is remarkably pleasing to get an order from a judge ruling in your client’s favor and realize the order is merely a cut-and-pasted version of your brief. Why shouldn’t the judge steal my words if they explain his result as well as he can figure out how to explain them, and why should he trouble himself trying to find better ways to do so?

But Nesson doesn’t give the judge he’s seeking to persuade anything to work with. First, he’s asking the judge not to enter an order that would impose the jury’s verdict and the injunction against his client. But on what basis? Is he asking for judgment notwithstanding the verdict? What procedural rule is he filing his opposition to the entry of the judgment on? His Brief sure doesn’t explain the basis. Nor does it explain what he is asking the judge to do in lieu of entering the order? Dismiss the case? Lower the damages? Lift the injunction? Any or all?

Listen, students: when you write to the judge make sure she knows what you’re asking her to do and the legal basis she has for doing it.

I won’t get into all of the merits of Nesson’s arguments. I think he may well have a due process argument on the excessiveness of the statutory penalties, but even that one is a stretch.

But the argument he considers “first and foremost” is that “the statute in question does not permit a lawsuit against an individual consumer for statutory damages.” Brief at 1-2 (emphasis added). Having not graduated from Harvard myself, perhaps I am missing something. The operative statute, 17 U.S.C. Section 504(c), provides that “the copyright owner may elect . . . to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, . . . .” (emphasis added)

Nor is there anything in any authority to suggest that Nesson’s incomprehensible conclusion that the statute does not contemplate imposing statutory damages on individuals is founded in sources to obscure for me to know.

Nimmer on Copyright, Section 14.04[a] provides: “Under the current Act, the copyright owner may elect to recover statutory damages, instead of actual damages and defendant’s profits. He may, moreover, make such an election regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits, and even if he has intentionally declined to offer such evidence, although it was available. . . . The availability of statutory damages under the current Act, even under circumstances in which plaintiff’s damages or defendant’s profits are susceptible to precise evaluation, represents a departure from the pertinent provisions of the 1909 Act.Under that former law, the availability of statutory damages was to a degree discretionary with the court and turned largely upon the proof of actual damages and defendant’s profits.” (citations and internal quotation marks omitted)

Patry on Copyright, Section 22:153 states: “Statutory damages are damages whose assessment has been fixed by the legislature. They have existed in U.S. copyright laws since preconstitutional days and stand in contrast to common law actual damages and an accounting of defendant’s profits. Recovery of actual damages or profits varies according to the harm suffered or the benefit received, without an upper limit on the recovery. Statutory damages have been believed to be particularly valuable where such relief is difficult to prove. The purpose of statutory damages has been noted a number of times by the Supreme Court.”

Thus, the court in In re Mann, 410 B.R. 43, 49 (Bkr. C.D. Cal. 2009), quoting Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (quoting Nimmer at § 1404[A] ), stated: “However, a plaintiff may elect statutory damages for copyright infringement ‘regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits.’” In Raydiola Music v. Revelation Rob, Inc., 729 F. Supp. 369, 374 (D. Del. 1990), the court explained that “the purpose of statutory damages is to remedy a wrong which would otherwise go unremedied if actual damages could not be proven.” See also Broadcast Music, Inc. v. Papa John’s Inc., 201 U.S.P.Q. at 305 (“Statutory damages were provided by Congress to create a remedy where actual damages [or profits] are not provable at law, but yet where it is proven that a violation of the copyright has occurred.”).”

In short, the plaintiff in a copyright infringement case has an alternative: he can prove and recover actual damages or seek the amounts allowed by statute. Such alternatives are common in situations in which it might be difficult for plaintiffs, even after having established statutory violations, to quantify their economic harm. It might even be argued that illegal downloading is precisely such a case — how can Sony BMG possibly quantify the sales, if any, it lost as a result of Tenenbaum’s unauthorized downloading of copyrighted songs.

Could I be wrong? Of course, but Nesson hasn’t begun to explain to me why. Instead, he’s made himself out to be someone who makes arguments that are patently false.

Don’t get me wrong here. I’m not on Sony BMG’s side. I think the music industry’s legal and business approaches to the technological revolution that has entirely undermined their old business models have been disasters, and I certainly don’t think Joel Tenenbaum should have to pay Sony BMG $675,000.

My problem is that Nesson is Tenenbaum’s lawyer and he hasn’t given me a good reason to believe he can get Tenenbaum free from that monumental verdict.

Is Nesson crazy? Statuory damages need not relate to actual damages.

As I explained the other day, the merits of Professor Charles Nesson’s argument that peer-to-peer file music file sharing constitutes fair use entirely escapes me (and, apparently, others). But Nesson seems to be making another argument as well — that if the plaintiff cannot show actual damages it is not entitled to the alternative remedy under the copyright statute, up to $150,000 in statutory damages per infringement:

He will argue that statutory damages only apply to commercial infringers.  The law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent. If the two remedies are equivalent, and if “individual noncommercial copying results in no provable actual harm to the copyright harm holder,” then actual damages would be zero-and so would statutory damages.  

As he also has been quoted:

It would be a bizarre statute indeed that offered two completely unrelated remedies,” he writes, “one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month. 

It doesn’t strike me as so bizarre. Statutory damages often serve the purpose of providing a remedy for a proven violation of law where the lawmakers have concluded it would be too burdensome to also require proof of damages, particularly in cases in which damages might be difficult to prove. It does not seem bizarre to believe that Congress in enacting the Copyright Act concluded that situations precisely like the one Nesson is defending — blatant individual infringements that cumulatively could have an impact on an industry but the individual effects of which are difficult to ascertain — should be subject to some liability. In addition, even if the statutory remedy bears no relationship to actual damage it can still serve a legitimate function: deterrence. And, indeed, my very brief research on the question has demonstrated the courts are quite aware of these arguments. In Pret-a-Printee, Ltd. v. Allton Knitting Mills, 218 U.S.P.Q. 150 (S.D.N.Y. 1982), the court stated:

An award of statutory damages is appropriate where the measure of actual damages is difficult to ascertain. See Peter Pan Fabrics v. Jobela Fabrics, Inc., 329 F.2d 194, 196 (2d Cir. 1964). Moreover, “[t]he broad discretionary power given the courts to make such an award serves the dual purposes of the Copyright Act: to compensate copyright owners and to provide a deterrent to would-be infringers.” Lauratex Textiles Corp. v. Allton Knitting Mills, 519 F. Supp. 730, 733 (S.D.N.Y. 1981), citing Lottie Joplin Thomas Trust v. Crown Publishers, 592 F.2d 651 (2d Cir. 1978).

So where is Nesson coming from. I confess: I can’t tell. Perhaps he believe damages divorced from damage somehow violate the Copyright Clause of the Constitution because they discourage rather than encourage innovation. Such arguments, however, have failed in far more compelling circumstances.

ADDENDMUM: “In effect, subject to the limits the statute places on maximum and minimum awards, this gives to the court or the jury the power to simply pick a sum of money to be awarded as damages instead of any other monetary remedies without any proof of monetary loss by the copyright owner.” Howard B. Abrams, 2 The Law of Copyright § 17:11 (2008) (emphasis added).

ADDENDUM 2: The question may be more complicated than I originally believed, and a statutory damage award entirely divorced from any relationship to damages might raise due process concerns. So the court stated in Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574, 587-588 (6th Cir.), cert. denied, 128 S. Ct. 2429, 171 L. Ed. 2d 229 (2007). Nonetheless, the court in Zemba affirmed an award of statutory damages that were 44 times greater than actual damages and emphasized the extreme deference appellate courts must give in reviewing trial courts’ awards:

This review, however, is extraordinarily deferential — even more so than in cases applying abuse-of-discretion review. Douglas v. Cunningham, 294 U.S. 207, 210, 55 S. Ct. 365, 79 L. Ed. 862 (1935) (Congress’s purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages “take[] the matter out of the ordinary rule with respect to abuse of discretion”); Broad. Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487 (7th Cir. 1995)   (interpreting the modern Copyright Act and noting “that the standard for reviewing an award of statutory damages within the allowed range is even more deferential than abuse of discretion”).

In Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278, 282 (D. Conn. 2008)(citations omitted), the court, without addressing the question, observed that “[th]e defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive . . . .”