          United States Court of Appeals
                      For the First Circuit
No. 12-2146

              SONY BMG MUSIC ENTERTAINMENT, ET AL.,

                      Plaintiffs, Appellees,

                                v.

                         JOEL TENENBAUM,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS
            [Hon. Rya W. Zobel, U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
              Torruella and Howard, Circuit Judges.


     K.A.D. Camara, with whom Camara & Sibley LLP, Paul J. Pape,
Nicolas M. Rouleau, Pape Barristers PC and Charles R. Nesson were
on brief, for appellant.
     Paul D. Clement, with whom Erin E. Murphy, Bancroft PLLC,
Jennifer L. Pariser, Recording Industry Association of America,
Matthew J. Oppenheim, Oppenheim + Zebrak, LLP, Timothy M. Reynolds
and Bryan Cave LLP were on brief, for appellees Sony BMG Music
Entertainment; Warner Bros. Records, Inc.; Arista Records LLC and
UMG Recordings, Inc.
     Jeffrey Clair, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, with whom Stuart F. Delery, Acting Assistant
Attorney General, Carmen Milagros Ortiz, United States Attorney,
and Scott R. McIntosh, Attorney, Appellate Staff, were on brief,
for appellee United States.
     Robert Alan Garrett, R. Reeves Anderson, and Arnold & Porter
LLP on brief for the Motion Picture Association of America, Inc.,
Amicus Curiae.

                          June 25, 2013
               HOWARD,    Circuit       Judge.       Joel    Tenenbaum       illegally

downloaded and distributed music for several years.                        A group of

recording companies sued Tenenbaum, and a jury awarded damages of

$675,000, representing $22,500 for each of thirty songs whose

copyright      Tenenbaum       violated.         Tenenbaum      appeals    the     award,

claiming that it is so large that it violates his constitutional

right to due process of law.                We hold that the award did not

violate Tenenbaum's right to due process, and we affirm.

                                      I. Background

               From 1999 to at least 2007, Tenenbaum downloaded and

distributed copyrighted music without authorization, using various

peer-to-peer         networks.1       Tenenbaum    knew     that    his   conduct     was

illegal, but he pressed on, ignoring warnings from his father, his

college,      and    recording    companies.         In   2007,     Sony     BMG    Music

Entertainment, Warner Bros. Records Inc., Arista Records LLC,

Atlantic       Recording       Corporation,2       and    UMG      Recordings,       Inc.

(together, "Sony"), sued Tenenbaum under the Copyright Act, 17

U.S.C. § 101 et seq., for statutory damages and injunctive relief.

Sony       pursued    claims    for    thirty     copyrighted       works,    although

Tenenbaum had apparently distributed far more.                     During discovery,



       1
       For more discussion of the facts of this case, see Sony BMG
Music Entertainment v. Tenenbaum (Tenenbaum II), 660 F.3d 487, 490-
96 (1st Cir. 2011).
       2
       Atlantic Recording Corporation was dismissed from the case
on July 20, 2009.

                                           -2-
Tenenbaum lied about his activities, blaming unidentified burglars

and a foster child living in his parents' home, among others. Only

at trial did Tenenbaum admit that he had distributed as many as

five thousand songs.

            The district court held as a matter of law that Tenenbaum

had violated the Copyright Act, and a jury found that Tenenbaum's

violations were willful.         The court instructed the jury that the

Copyright Act provides for damages between $750 and $150,000 for

each willful violation.      17 U.S.C. § 504(c).        The court also gave

the jury a set of non-exhaustive factors that it might wish to

consider    in   issuing   its   award,    including    the   nature   of   the

infringement; the defendant's purpose and intent; the profit that

the defendant reaped, if any, or the expense that the defendant

saved; the revenue lost by the plaintiff as a result of the

infringement; the value of the copyright; the duration of the

infringement; the defendant's continuation of infringement after

notice or knowledge of copyright claims; and the need to deter this

defendant and other potential infringers.            The jury awarded Sony

$22,500 for each of Tenenbaum's thirty violations (15% of the

statutory maximum), for a total award of $675,000. Tenenbaum moved

for   a   reduction   in   the    award,   arguing     that   remittitur    was

appropriate and that the award was so high that it violated his

right to due process.      The court bypassed the issue of remittitur

and held that the award violated due process, reducing it to


                                     -3-
$67,500.     Sony BMG Music Entm't v. Tenenbaum, 721 F. Supp. 2d 85

(D. Mass. 2010).       In doing so, the court relied on BMW of North

America, Inc. v. Gore, 517 U.S. 559 (1996), in which the Supreme

Court held that an excessive award of punitive damages can violate

due process.

            Sony appealed the reduction of the award. We vacated the

district     court's   judgment,     holding    that      the   principle    of

constitutional avoidance required the court to address the issue of

remittitur    before   determining    whether    the   award      violated   due

process.     Sony BMG Music Entm't v. Tenenbaum (Tenenbaum II), 660

F.3d 487, 508-15 (1st Cir. 2011).           We also suggested that if the

district court were to evaluate the constitutionality of the award

on remand, it should rely not on Gore, but on St. Louis, I.M. & S.

Ry. Co. v. Williams, 251 U.S. 63 (1919), in which the Supreme Court

considered the constitutionality of an award of statutory damages.

Tenenbaum II, 660 F.3d at 512-13.

            On remand,3 the district court decided that remittitur

was inappropriate and that the original award of $675,000 comported

with due process, relying on Williams.           Sony BMG Music Entm't v.

Tenenbaum    (Tenenbaum   III),    No.     07-cv-11446,    2012    WL   3639053

(D. Mass. Aug. 23, 2012).      Tenenbaum now appeals the decision on




     3
       Judge Gertner, who had presided over Tenenbaum's trial,
retired while the appeal was pending. The case was remanded to
Judge Zobel.

                                     -4-
the constitutionality of the damage award, but not the decision on

remittitur.

                                II. Analysis

              This appeal presents two questions.          First, what is the

correct standard for evaluating the constitutionality of an award

of statutory damages under the Copyright Act?                Second, did the

award of $675,000 violate Tenenbaum's right to due process?                    We

review these questions of law de novo.             See Cooper Indus., Inc. v.

Leatherman Tool Grp., Inc., 532 U.S. 424, 436 (2001).

              A. Evaluating the Constitutionality of Statutory Damages

              In Williams, the Supreme Court considered a challenge to

an Arkansas statute that subjected railroads to penalties of 50 to

300 dollars, plus costs, for each offense of charging passengers

fares that exceeded legal limits.              See Williams, 251 U.S. at 64.

After   the    St.   Louis,   I.M.   &    S.   Railroad   collected    from   two

passengers a fare of 66 cents more than the law allowed, the

passengers brought suit pursuant to the statute.                      Id.     Each

passenger obtained a judgment of 75 dollars plus fees--an award

within the statutory range.              Id.    The railroad challenged the

statutory award as unconstitutionally excessive under the Due

Process Clause. Id. The Court rejected the railroad's due process

argument, holding that a statutory damage award violates due

process only "where the penalty prescribed is so severe and




                                         -5-
oppressive as to be wholly disproportioned to the offense and

obviously unreasonable."       Id. at 66-67.

           Gore and its progeny, which Tenenbaum argues should apply

here, address the related but distinct issue of when a jury's award

of punitive damages is so excessive that it violates due process.

See Gore, 517 U.S. at 574.        In Gore, the Court, animated by the

principle that due process requires that civil defendants receive

fair notice of the severity of the penalties their conduct might

subject them to, id., identified three "guideposts" for a court's

consideration of whether a punitive damage award is so excessive

that it deprives a defendant of due process:           (1) the degree of

reprehensibility of the defendant's conduct, id. at 575–80, (2) the

ratio of the punitive award to the actual or potential harm

suffered by the plaintiff, id. at 580–83, and (3) the disparity

between the punitive award issued by the jury and the civil or

criminal penalties authorized in comparable cases, id. at 583–85.

           Here, the district court correctly chose to apply the

Williams standard. By its own terms, Williams applies to awards of

statutory damages, which the jury awarded in this case, while Gore

applies to awards of punitive damages, which the jury did not

award.   Gore did not overrule Williams, and the Supreme Court has

not   suggested   that   the     Gore     guideposts   should    extend   to

constitutional review of statutory damage awards.               The concerns

regarding fair notice to the parties of the range of possible


                                    -6-
punitive damage awards, which underpin Gore, are simply not present

in a statutory damages case where the statute itself provides

notice of the scope of the potential award.                        Moreover, Gore's

second and third guideposts cannot logically apply to an award of

statutory damages under the Copyright Act.               The second due process

guidepost requires a comparison between the award and the harm to

the plaintiff, but a plaintiff seeking statutory damages under the

Copyright Act need not prove actual damages. F.W. Woolworth Co. v.

Contemporary Arts, Inc., 344 U.S. 228, 233 (1952).                          The third

guidepost      requires    a     comparison    between     the      award     and   the

authorized civil and criminal penalties in comparable cases.

Because   an    award     of   statutory      damages    is   by     definition      an

authorized civil penalty, this guidepost would require a court to

compare the award to itself, a nonsensical result.                    Therefore, we

conclude, as have other courts, that the standard articulated in

Williams governs the review of an award of statutory damages under

the Copyright Act. See Capitol Records, Inc. v. Thomas-Rasset, 692

F.3d 899, 907 (8th Cir. 2012); Zomba Enters., Inc. v. Panorama

Records, Inc., 491 F.3d 574, 587 (6th Cir. 2007).

             B. Constitutionality of the Award Against Tenenbaum

             To determine whether "the penalty prescribed [against

Tenenbaum]      is   so   severe     and      oppressive      as    to   be    wholly

disproportioned      to    the    offense     and   obviously        unreasonable,"

Williams, 251 U.S. at 66-67, we will examine the purpose of


                                        -7-
statutory damages under the Copyright Act, as well as Tenenbaum's

behavior.

              Statutory damages under the Copyright Act are designed

not    only    to    provide    "reparation   for    injury,"     but   also   "to

discourage wrongful conduct." F.W. Woolworth Co., 344 U.S. at 233.

As we explained in Tenenbaum II, in 1999 Congress increased the

minimum and maximum statutory awards under the Copyright Act

because of new technologies that would allow Internet users to

steal copyrighted works.            660 F.3d at 500.             At trial, Sony

presented evidence that Tenenbaum's activities led to the same type

of    harm    that   Congress    foresaw:     loss    of   the    value   of   its

copyrights, reduced income and profits, and job losses.                   Id. at

502-03.

              On appeal, Tenenbaum invites us to assume that he is "the

most heinous of noncommercial copyright infringers."                We need not

go so far as to accept his offer.4             The evidence of Tenenbaum's

copyright infringement easily justifies the conclusion that his

conduct was egregious.           Tenenbaum carried on his activities for

years in spite of numerous warnings, he made thousands of songs

available illegally, and he denied responsibility during discovery.

Much of this behavior was exactly what Congress was trying to deter

when it amended the Copyright Act.            Therefore, we do not hesitate


       4
       In Tenenbaum II, we rejected Tenenbaum's argument that the
Copyright Act distinguishes between "consumer" and "non-consumer"
infringement. 660 F.3d at 498.

                                       -8-
to   conclude    that   an    award   of    $22,500   per   song,   an   amount

representing 15% of the maximum award for willful violations and

less than the maximum award for non-willful violations, comports

with due process.

           Tenenbaum argues that the award of $675,000 violates due

process because it is not tied to the actual injury that he caused,

which he estimates to be no more than $450, or the cost of 30

albums at $15 each.          But this argument asks us to disregard the

deterrent effect of statutory damages, the inherent difficulty in

proving damages in a copyright suit, and Sony's evidence of the

harm that it suffered from conduct such as Tenenbaum's.                   More

importantly, the Supreme Court held in Williams that statutory

damages are not to be measured this way:

           Nor does giving the penalty to the aggrieved
           [party] require that it be confined or
           proportioned to his loss or damages; for, as
           it is imposed as a punishment for the
           violation of a public law, the Legislature may
           adjust its amount to the public wrong rather
           than the private injury, just as if it were
           going to the state.

251 U.S. at 66; see also Thomas-Rasset, 692 F.3d 899 at 909-10

(rejecting, in a case with similar facts, the district court's

conclusion that "statutory damages must still bear some relation to

actual damages"). For these reasons, we find Tenenbaum's arguments

unpersuasive.5


      5
       Tenenbaum asks us to remand the case for a new trial at
which the jury will not be told the maximum award of damages, but

                                      -9-
                           III. Conclusion

          For   the   reasons   stated   above,   the   jury's   award    of

$675,000 did not violate Tenenbaum's right to due process.               The

judgment of the district court is affirmed.




will be instructed that proportionate damages would be three times
the statutory minimum award. Tenenbaum II forecloses this remedy.
660 F.3d at 503-05 (citing Feltner v. Columbia Pictures Television,
Inc., 523 U.S. 340 (1998)).

                                  -10-
