Music industry scapegoat Joel Tenenbaum has filed a Motion for a New Trial to Judge Nancy Gertner, the same judge who presided over the original trial, in an attempt to get a reduction in the original $22,000 per song fine.
The filing highlights errors which the judge made during the trial and in Judge Gertner’s subsequent opinion denying Joel’s fair use defence, along with the argument that the crippling award of $675,000 can not stand because it is unconstitutionally high. The music industry will have a chance to respond, and then Judge Gertner will rule on the issues sometime in the next few months.
The Harvard-based defence team maintains that Judge Gertner made a mistake when identifying the introduction of the iTunes Music Store in 2003 as the end of a time period when Joel could have had a fair use claim. At the time, iTunes was limited to just 20,000 songs and was Mac only.
Judge Gertner accepted the argument that the recording companies' unwillingness to offer music consumers an authorised online source comparable to what was available to them on Napster put music consumers in an unfair position. However, Judge Gertner did not allow Joel to make this argument, since she believed that the music industry tipped the scales back in its favor when Apple began selling individual downloads for $.99 each.
Even if Judge Gertner refuses to revisit her position on fair use, the defence believes that the $650,000 in damages must be reduced substantially under the Due Process clause of the US Constitution. The argument on this point comes directly from a nearly hundred-year old Supreme Court case that said that damages awarded according to a specific statute are invalid if they are 'so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable'.
Physics student Tenebaum has already pointed out that he would be made immediatley bankrupt if the amount of damages is not reduced to a payable amount, but the RIAA needed a scapegoat and, unfortunately for Joel, the pin stuck in his name.