Sony BMG Music Entertainment, et al v. Tenenbaum

Filing 64

CITATION of supplemental authorities pursuant to Fed. R. App. P. 28(j) filed by Appellee/Cross-Appellant Joel Tenenbaum in 10-1883, 10-1947, 10-2052. Certificate of service dated 03/25/2011. [10-1883, 10-1947, 10-2052] (CRN)

Sony BMG Music Entertainment, et al v. Tenenbaum

Doc. 64

Charles R. Nesson 1525 Massachusetts Ave. Cambridge, MA 02138 [phone] March 25, 2011 Ms. Margaret Carter Clerk, United States Court of Appeals for the First Circuit 1 Courthouse Way, Suite 2500 Boston, MA 02210 Re: Sony BMG v. Tenenbaum, Nos. 10­1883, 10-1947, 10-2052 Dear Ms. Carter: This case is scheduled for oral argument on April 4, 2011. Pursuant to FRAP 28(j), Defendant-Appellee/Cross-Appellant Joel Tenenbaum respectfully directs the Court's attention to supplemental authority providing additional support for the proposition that the plaintiffs should not be allowed to aggregate infringements in a way that leads to absurdly large statutory damage awards. See Tenenbaum Opening Br. 16­21. In Arista Records v. Lime Group (No. 06-5963, S.D.N.Y.), many of the same plaintiffs involved in this case sued a software manufacturer for secondary copyright infringement of their sound recordings. See Opinion and Order of March 10, 2011, Docket No. 622, available at http://bit.ly/LimeGroup. Summary judgment was granted to the plaintiffs on the issue of infringement. Plaintiffs subsequently claimed that, at the forthcoming trial on damages, they will be entitled to a "separate statutory award for each individual's infringement of a work as to which Defendants are jointly and severally liable." Id. at 2. Plaintiffs claimed they are entitled to damages that "could reach into the trillions" of dollars. Id. at 6. On March 10, the district court issued an opinion rejecting that contention. As relevant here, it noted that such an interpretation would "offend[] the `canon that we should avoid endorsing statutory interpretations that would lead to absurd results.'" Id. at 6 (quoting Torraco v. Port Authority of New York and New Jersey, 615 F.3d 129, 145 (2d Cir. 2010)). The absurdity arises because, on plaintiffs' theory, they would be entitled to "`more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877.'" Id. (quoting Def. Mem. at 2­3). As we argue in our briefs, the same absurdity is present here. If their argument were accepted, they would be entitled to recover "more than the total revenue of the entire recording industry would earn over six years" merely by refusing to settle in all of the cases they filed against consumer filesharers. Tenenbaum

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Dockets.Justia.com

Opening Br. 18. This month's ruling in Lime Group provides additional support for the proposition that this absurd result must be avoided. Sincerely, /s/ CHARLES R. NESSON 1525 Massachusetts Avenue Cambridge, MA 02138 [phone] cc: Opposing counsel and amicus (via ECF)

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