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IT Blogwatch

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RIAA sues Joel Tenenbaum for $4.5m in P2P trial

14 comments

TAGS:Arista, Boston, Charles Nesson, Harvard, Joel Tenenbaum, RIAA, Sony, UMG, warner
IT TOPICS:Government & Regulation, Internet, Security

Four record labels and the RIAA are suing a student, Joel Tenenbaum, for $4,500,000, alleging illegal file sharing. In IT Blogwatch, bloggers contemplate the second such case to reach trial, courtesy of Arista, Sony, UMG, and Warner.

Richi Jennings is your humble blogwatcher, who selected these bloggy morsels for your enjoyment. Not to mention support should never be necessary...

Jonathan Saltzman passes the cruet:

Four major record labels who sued a Boston University graduate student for illegally downloading and sharing music online plan to begin making their case [Tuesday] before a federal jury. ... Lawyers for the record labels and for Joel Tenenbaum, 25, were ... delayed until this morning. It took longer than expected to pick a jury in US District Court, in part because several prospective jurors were disqualified after conceding they had downloaded music without paying for it.
...
The only other defendant to go to trial was Jammie Thomas-Rasset of Minnesota, who faced similar allegations of file sharing. Last month, a federal jury in Minnesota sided with the record labels and awarded $80,000 per song, or a total of $1.92 million.

Ben Sheffner calls Monday "a full, slogging day of jury selection":

The defense [was] reeling from Boston federal judge Nancy Gertner's last-minute decision to remove Tenenbaum's proposed fair use defense. ... Tenenbaum's hopes of letting the jury determine whether his acts of alleged infringement constituted fair use under the Copyright Act were dashed by an order e-mailed to the parties this morning at 1:37 am.
...
Tenenbaum has repeatedly admitted, including under oath at his two days of deposition, that he used KaZaA to download and share songs, and the record labels have mountains of evidence to confirm what Tenenbaum admits.

Richard Koman isn't a barbariam:

Tenenbaum has admitted to downloading the songs, over an extended period of time. The judge simply couldn’t conceive of how his circumstances could possibly fall within fair use. And she pointed out - it’s not that hard to imagine facts that would present a good fair use defense.
...
Perhaps the Harvard team was more interested in making a broad alternative restatement of copyright law than in parsing Joel’s admissions in a way that would have allowed them to preserve some remnant of fair use. Maybe that’s what happens when academics waltz into the courtroom?

Joel Tenenbaum tells us how it feels:

When I contemplate ... how it feels to be sued for $4.5m ... I have to remind myself what I'm being charged with. Investment fraud? Robbing a casino? A cyber-attack against the federal government? No. I shared music. And refused to cave.
...
For the past four years, they've been threatening me, making demands for trial, deposing my parents, sisters, friends, and myself twice – the first time for nine hours, the second for seven. ... No matter how many people I explain this to, the reaction is always the same: dumbfounded surprise and visceral indignance, both of which are a result of the amazing secrecy the ... RIAA has operated under.

J.B. Nicholson-Owens explains why people are polarized about this:

Because they sometimes see the needless legal suffering and hypocrisy brought by well-funded copyright maximalists and they don't want those maximalists defining the contours of copyright law alone.
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The RIAA is not to be trusted in court. Their history includes ... the 2003 threat against Penn State's Prof. Usher who, with his team of researchers, innocently recorded a song in celebration of their new telescope. How did they get caught in the RIAA's all-too-blind dragnet? Apparently they dared to store an MP3 file containing the strings "usher" and ".mp3" in the filename on a publicly-accessible FTP server and nobody at RIAA thought to listen to the file before launching into litigation threats.

And Darkness404 has another angle:

Its not the fact that its against the law its the fact that ... these people are convicted for -insane- damages. Ok, how much is a song worth? About $.99 right? But to the RIAA they can sue for -hundreds- and -thousands- for a single song. So what do you think would happen if I stole a CD from Wal-Mart and they found out about it? They would probably charge me a few hundred dollars, perhaps ban me from the store, etc. they wouldn't sue me for many thousand dollars. Wait, but here is the thing, Wal-Mart -bought- the CD wholesale, Wal-Mart paid money for it, for digital copies they don't cost a cent to make so there are no lost profits.

The law states that penalties should not be outrageous, I think anything more than $20-$30 a song is outrageous. The RIAA did not lose much of anything whenever a song is "pirated".

But wasabii wants Due Process:

Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefore is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.

If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.

So what's your take?
Get involved: leave a comment.

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Richi Jennings is an independent analyst/consultant, specializing in blogging, email, and spam. A 24 year, cross-functional IT veteran, he is also an analyst at Ferris Research. You can follow him as @richi on Twitter or richij on FriendFeed, pretend to be Richi's friend on Facebook, or just use good old email: itblogwatch@richij.com.

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The thing that I can't get

Submitted by Anonymous on July 29, 2009 - 12:52 A.M.

The thing that I can't get passed in all of these dumb-ass RIAA cases is not that they are the righteous ones stamping out an underclass of wrong-doers, but that the members of the RIAA CREATED that underclass! Ignoring the shift from their beloved physical media to something that they buried their heads in the sand to avoid even having to think about. Well guess what boys? You reap what you sow.

You're pathetic denial has created this situation now you want to go after YOUR CUSTOMERS as the enemy!!!! Morons! You no doubt would have sued everyone in the 70's who recorded a song onto cassette because "home taping was killing music".. Morons! It did nothing but expand your market. You were too dumb to realize it then and you're too dumb to realize it now!

You blame declining music sales on P2P networks and other downloading rather than listen to you customers and realize that you're not producing product that they want to BUY!

How I hate the RIAA and the MPAA. They are both moronic organizations who want to make criminals out of the very people who would be their customers if they were offering a product relevant for today's consumer.

You are dinosaurs, sitting back on the plains of your history. Unwilling to embrace the market that is beating a path to your door. Unable to understand that you have been handed the biggest opportunity in decades and impotent in your inability to rise to the challenge of providing the soundtrack for the digital age.

Rot in you incompetence!

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Nice try

Submitted by AshbyEsq on July 28, 2009 - 11:39 P.M.

It’s a shame that Joel and his Harvard team have not seen the writing on the wall. Their case is a dead-bang loser. It was gutted by Ms. Rust’s motion for summary judgment on fair use the other day and now they are doing a trial basically on damages. This case has no chance of changing copyright law or any case law associated with it (SCOTUS will never hear this case with a clear admission of liability). They are wasting their time and this thick-headed kid from Harvard should have seen this coming, not to mention his "all-star" legal team.

Maybe Yale Law is the better choice...

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Fair use, infringment, and outrageous penalties

Submitted by Morely the IT Guy on July 28, 2009 - 6:17 P.M.

@wasabii - The issue is two-fold: Firstly, what constitutes fair use? Copyright law does not explicitly state "these things are fair use and all other things are infringements," nor is copyright law even the same from one country to the next. For example, the USA has the "Digital Millenium Copyright Act," or DMCA, which makes it a criminal offense to make a backup copy of a CD or DVD that has any form of encryption, even though common law has always considered that fair use.

Secondly, what constitutes fair punishment? You can walk into any Wal-Mart and buy a CD for under $20; generally, the CD will contain 10 or more titles ("songs") (and one or two of them will be what the buyer actually wants). But let's assume it contains only 5 titles. That means the fair market value of each title is in the neighborhood of $4. Now, let's call it "fair" to fine someone twice the fair market value of a title if they care caught sharing it - making available for download without payment to the copyright hold (who is very rarely the artist, by the way). That means that, to be fair, the RIAA must prove that Tenenbaum shared 562,500 titles. I suspect the trial would, in that case, run considerably longer than the life expectancy of the defendant.

What we currently have in the USA is the Buggy-Whip Manufacturers' Guild (the RIAA) who have managed to buy enough votes in Congress that it is now a crime to buy a car without also buying a buggy-whip (the DMCA). In "real life," whatever that is, buggy-whip manufacturers changed their businesses to survive. The RIAA is attempting to force everyone to buy a buggy-whip - from them, at a greatly inflated price.

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really? C'mon... Stealing is Stealing...

Submitted by snfu bar on July 28, 2009 - 3:30 P.M.

it's shocking to me that otherwise rational people can engage in defending the thievery of copyrighted works - rightfully denying the earned revenue to those who have labored to create those works.

Producers, Mixers, Engineers as well as the musicians, songwriters, and yes even the labels all deserve to be compensated for their labor - just like you do...

It's not that Joel "downloaded a few songs" it's that by "sharing them" he cheated the copyright holders out of potentially tens of thousands of sales. This isn't like making a cassette for your sister, when music is shared via p2p the audience and distribution is virtually limitless.

Please, let's have some perspective. Support the arts.

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Oh come on!

Submitted by Anonymous on July 29, 2009 - 1:28 A.M.

No body is talking about condoning mass law breaking! We're not a bunch of anarchists proclaiming that all works should be free from all royalties. Just stop being hysterical by trying to suggest the this is some kind of Communist rebellion. That's BS, we all know it.

You can't in all honesty believe that an industry should have uncontrolled power to intimidate our citizens and its customers with unprecedented penalties that go way beyond any damage that could reasonably be proved. This is not justice..... This is terror.

This industry has CHOSEN to not keep up with the demands that its customers have very obviously been demanding for years! So do you really think think that its market should now be intimidated to give up the requests that they have for consumption of this product or that the industry should either exit the business or give it's customers what they want? Nobody wants something for nothing. We all want the artists and the distributors to get the compensation they deserve, but what is to be done when that industry REFUSES to supply???

Imagine if you needed gas, but the gas industry had decided that it was only willing to give you gas if you drove a car that accepted gas in a way that they could take it away from you at any time without reason or without your permission. This isn't about being honest. It's about the market getting what it wants. That's as American as it gets!

The RIAA and the MPAA are not about upholding your rights. They are about withdrawing your rights. How may times have you bought your favorite album? On Vinyl record? On Cassette, On CD, on MP3? That 4 times by my stupid reckoning. Yet they tell us that they don't sell it to us, they license us with the rights to listen to it.. So WHY do they take our money 4 times?

Who's really getting ripped off here? Who should really be answering the hard questions?

Don't become a pawn to the revenue driven objectives of others when all that they are doing is diluting the rights that have been hard fought for that you currently enjoy.

The next time you record "The Family Guy" or "20/20" to your VCR or DVR thank the folks who stood up and called BS to "Home taping is killing music" because your freedom to do so is built on the backs of others who were not intimidated.

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Perspective?

Submitted by Greg D. on July 28, 2009 - 7:44 P.M.

Okay, you want perspective then you better run and hide if you ever recorded a movie off TV with your VCR and showed it to ANYONE. Here come the cuffs, you're guilty. SLAM!

Every walked down the street whistling a copyrighted song? GUILTY! SLAM!

You see what these people are saying? The outrageous penalties don't fit the "crime". Don't hum that song... COPYRIGHT INFRINGEMENT if anyone hears you... you're SHARING!

You can't have a potato chip from my BRANDED, COPYRIGHTED bag of "Frito-Lays" -- I could be indicted and imprisoned for SHARING.

If you can't see the ridiculousness of it all, you belong with the 3rd Reich.

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Stealing is Stealing???

Submitted by Anonymous on July 28, 2009 - 5:47 P.M.

So you believe a child who steals a $.99 candy bar from the store should be held to the same accountability level as a thief who robs a jewelry store and makes off with $1,000,000? C'mon...a 16 year old kid who downloads 7 songs that cost less than $7 today(remember when all this started these sites were free) should not be held accountable for $45,000,000 in damages!! GET REAL!
Does this mean that my high school boyfriend who recorded a cassette tape for me of my favorite songs in high school was a "thief" who stole those songs? (He recorded them off the radio...not albums he had purchased) and when I made copies of that tape for my friends...I also became a thief?

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No, but...

Submitted by IT Blogwatch on July 28, 2009 - 5:15 P.M.

What Tenenbaum did is not "stealing" or "theft". He is accused of copyright infringement, not the theft of a physical, scarce object. In other words, he did not deprive anybody of their property.

Presumably, because of his admission, the case isn't about his guilt but about the level of remedy. It's debatable whether he "cheated" anyone anything, let alone "tens of thousands of sales."

The argument is presumably that millions of dollars would be an unrealistic remedy.

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RIAA sues Tanenbaum

Submitted by Geoff Marsden on July 28, 2009 - 2:42 P.M.

In all other industries, when profits are threatened, organizations shift into cost reduction mode to protect profits.
I suggest the recording industry does the same.

Obviously the big recording artists are making way to much money since we get to see their gold plated Rolls Royces, palatial homes and other "Bling" nightly on the so-called entertainment shows.

The record company executives too are making a fortune as are the corporate lawyers.

All of these people can obviously afford a 90% pay cut and still have larger incomes than the rest of us.

If the record companies did this, they'd be able to sell music for such a low price that it wouldn't be worth the hassle of trying to find free downloads. You'd just go and buy the song you wanted.

Make it cheaper to buy music legally and the illegal download problem will be solved.

I can't think of any other industry that sues its customers because it isn't making enough profit!

I also suggest that people stop listening to music from companies that are copyright zealots.

I mean, is it really worth the risk of being sued in order to listen to the machine generated beat and auto-tune corrected voice of some noise making individual who would, in most cases, be a complete failure in any other activity?

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