But the appeals court did not address the core constitutional questions that led US District Court Judge Nancy Gertner to reduce the judgment to $67,500, saying instead that she should have tried to set a figure that the Recording Industry Association of America could agree with. If the association would not agree to a lower figure, she could have ordered a second trial to determine an award.
When deciding the issue last year, Gertner did not try to set a figure that the association could accept, or a common law remittitur, because the association said at the time that it would not agree to any reduced figure. She determined that a second trial would lead to the same outcome and so rendered the decision.
But by skipping that process, Gertner grappled with a constitutional question on whether the judgment award was excessive without going through the proper process, the appeals court found.
“The abandonment of the rule instead thrust the case into a thicket of constitutional issues it was not necessary to enter,’’ the appeals court said in a 65-page opinion, adding that it “also led the court to address questions that had not yet been fully developed. Federal courts do not answer such hypothetical questions.’’
The appeals court dismissed Tenenbaum’s arguments for appeal, vacated Gertner’s reduction of the judgment by 90 percent, and reinstated the original $675,000 award. However, the court ordered that another US District Court judge (Gertner has retired) decide on a more appropriate figure. If one cannot be determined, a new trial should be held, the appeals court ruled.
Tenenbaum could not be reached for comment yesterday, but has said he would have to file for bankruptcy even if the lower figure were upheld. His lawyer, Charles Nesson, Harvard University professor, who led a team of law school students in the case, said through a spokeswoman that he would not comment on the decision.
Jennifer Pariser, senior vice president of litigation and legal affairs for the association, said in a statement, “We are pleased the court agreed with us that the finding of liability was correct and that the District Court erred in finding the verdict unconstitutional.’’
Tenenbaum was found liable for 30 copyright infringements.
Gertner found the decision excessive and stripped the award down to $2,250 for each infringement. Tenenbaum appealed that decision, saying the copyright laws were not intended for cases of downloading music for personal use.
A Minnesota woman, Jammie Thomas-Rasset, faced similar allegations and after several trials her case is headed to the federal appeals court, after a judge in her case twice reduced a jury verdict following a remittitur process.
Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.
