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In 2008, Harvard Law professor Charles Nesson and students in his CyberOne class helped Boston University graduate student Joel Tenenbaum challenge the constitutionality of the recording companies’ copyright-enforcement case against him. Those were arguments made by Tenenbaum’s defense—not rulings that the courts accepted. The case ultimately ended with a $675,000 jury award, which the First Circuit upheld in 2013.
What the Harvard class argued in 2008
A November 19, 2008 BetaNews report described Nesson and CyberOne students assisting Tenenbaum in a suit brought by recording companies during the RIAA’s campaign against alleged file-sharing. The defense challenged both the constitutionality of statutory damages and the use of private civil lawsuits to enforce copyright claims. These were the defense’s legal theories, not findings by a court. BetaNews reported the arguments at the time; the Harvard CyberOne archive is an advocacy source associated with the class.
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The contemporary account said Tenenbaum was accused of downloading seven songs and making 816 available for download, and that a jury trial scheduled for December 1 had been adjourned. Those figures describe allegations in that early report. They are not the eventual jury’s findings: the case that reached trial concerned thirty recordings.
What happened at trial
A jury awarded the recording companies $675,000 in statutory damages for infringement of thirty recordings—$22,500 per recording. The award, rather than the early report’s allegation counts, became the focus of the appellate dispute.
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Why the 2011 appeal did not settle the constitutional question
The district court had reduced the jury’s $675,000 award to $67,500 after finding it violated due process. In 2011, the First Circuit reversed that reduction and reinstated the jury award, but its decision was procedural: the district court should have considered common-law remittitur before reaching the constitutional question. The appellate court remanded the case and rejected other challenges Tenenbaum raised in that appeal. It did not simply affirm the district court’s original constitutional analysis. Read the First Circuit’s 2011 opinion.
What the First Circuit held in 2013
In 2013, the First Circuit held that the $675,000 award did not violate Tenenbaum’s right to due process and affirmed. Judge Howard’s opinion states: “We hold that the award did not violate Tenenbaum’s right to due process, and we affirm.” The court identified the statutory-damages range for willful infringement as $750 to $150,000 per work; the jury’s $22,500 per recording was within that range. Read the First Circuit’s 2013 opinion. A Supreme Court docket record documents Tenenbaum’s subsequent petition.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.How to read the case’s outcome
- Defense position: Tenenbaum’s side argued that the damages scheme and private enforcement raised constitutional problems.
- 2011 appellate decision: The First Circuit restored the jury award because the district court had addressed due process before remittitur.
- 2013 appellate decision: The First Circuit concluded that the award itself did not violate due process.
The distinction matters: a constitutional challenge can be raised without being accepted, and a procedural reversal does not necessarily decide the underlying constitutional issue. In this case, the First Circuit ultimately decided that issue against Tenenbaum.
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- Constitutional Law (University Casebook Series)
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