Joel Tenenbaum follows in Jammie Thomas' footsteps
Joel Tenenbaum just wanted to hear music and his illegal downloading and sharing of of songs caused little damage to the music industry, his attorney argued in court Tuesday.
Tenenbaum, a graduate student at Boston University, has been accused by the Recording Industry Association of America of copyright violations and the court fight is now underway. Like Jammie Thomas-Rasset, the Minnesota woman accused of illegal file sharing, Tenenbaum has decided to take on the major music labels in court rather than to settle the case.
Tenenbaum shares more in common with Thomas-Rasset than just initials. He is only the second person accused by the music industry of copyright infringement to take their case to a jury. The first was Thomas-Rasset. By refusing to settle with the RIAA, Tenenbaum risks being found liable for millions in damages. A jury in her home state ordered Thomas-Rasset to pay nearly $2 million. Her lawyers say that they will appeal the decision.
Tenenbaum is represented by Charles Nesson, the famed Harvard professor.
"He was a kid who did what kids do and loved technology and loved music," Nesson told the jury according to a report in The Associated Press.
One of the main differences between Tenenbaum and Thomas-Rasset is he has admitted sharing and downloading music illegally. Thomas-Rasset denies she is engaging in file sharing. According to Ben Sheffner, a copyright attorney who has worked for 20th Century Fox and now blogs about online copyright issues, Nesson is essentially fighting to limit the damages Tenenbaum will likely be required to pay.
"What Nesson is saying is that what Tenenbaum did isn't so bad and he didn't cause much harm," Sheffner said. "His overall point was that whatever harm was caused was due to the Internet in general, not because of what Joel Tenenbaum did."
Nesson argued that the Internet made it possible for fans to replace the CD with digital files, which freed consumers from having to buy songs they didn't want. He compared the digital music files and its effect on the music industry to how the "automobile swept into the buggy industry."
Another way that Tenenbaum has differed from Thomas-Rasset is that her trial by comparison was relatively free from courtroom drama. Nesson has appeared at times to invite it. He deputized one of his students to do much of the work in the case. Nesson was also accused of tape recording conversations that took place between both sides attorneys, which is against the rules. During jury selection, Nesson asked questions that didn't appear very significant, such as whether potential jury members liked his turtleneck sweater.
Nesson also took the unusual step of writing to the Department of Justice to step in.
"We ask you to intervene in Joel's case on behalf of the people of the United States of America," Nesson wrote, "to save the constitutionality of Section 504(c) by interpreting its damage provision for willful infringement to apply only to commercial infringers. If applied to such individuals as Joel, who has made no commercial use of plaintiffs' copyrights, the statute violates the Constitution."
Nesson is most famous for representing Daniel Ellsberg, the man who leaked the Pentagon Papers in 1971, against charges of treason leveled by the U.S. government. The Pentagon Papers revealed that the U.S. government had deliberately expanded the war in Vietnam and Southeast Asia. Ellsberg would eventually prevail.
According to Sheffner, U.S. District Judge Nancy Gertner has been less than impressed with the theatrics.
"I think there was a lot of talk in the press when Nesson came on that finally this prominent professor from Harvard was taking on the labels," said Sheffner, who has covered the trial for his blog. "They said 'Finally, someone is going to put (the music industry) in their place.' That hasn't happened, primarily because the law is simply not on their side and two because he's litigated this case in a way that has annoyed the judge."
One of the most significant setbacks for Tenenbaum, and indeed for anyone else who might challenge the RIAA in court, has been the judge's decision to prevent him from arguing that sharing copyright content on peer-to-peer networks is fair use.
The trial is schedule to continue Wednesday.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
I don't know what his major is in, but I wonder how happy he would be to have his work taken without compensation.
Sure the nearly $2M judgement was unrealistic, but she had chances before and after to settle for 0.15% of that, but refused.
I have no particular love for most labels, but the business part of the music business is something most musicians cannot deal with. Someone has to represent them, that's what labels and the RIAA do (although clumsily at times).
As for Thomas, she shouldn't have to settle for any amount just because the RIAA says she owes them. That entire scheme reeks of the Mafia's idea of "protection money".
I feel for the artists and other content creators, but their representation hurts them more than any amount of file-sharing. I think I'd rather go it alone (especially in the Internet age) than have RIAA members backing me.
Look, I don't want to see anyone out in the street because the music industry isn't making money like it once was, but the RIAA can't throw lawsuits at people just to see what sticks. You can't walk into a courtroom in any other context and expect a payout just from anecdotal evidence such as, "Well I'm in the business, and since X happened and Y happened, X must have caused Y" without any kind of proof or data to back it up. There's no quantification for any sort of effect, positive or negative, of downloading on music sales, and let's be honest, the RIAA and its members haven't been making many friends with their business philosophies in the past few years. So why is it OK for them to hand out lawsuits like party favors and collect millions of dollars from their own customers without proof of damages?
I'm not trying to justify illegal file sharing, but it's hard to sympathize with a trade group that extorts people with thousand-dollar settlements and lawsuits when they barely know that they're even going after the right person, much less whether or not that person's alleged actions actually caused them any harm. I'm sorry that musicians and employees are suffering because of the industry can't maintain its financial status quo, but the RIAA isn't doing them any favors with their underhanded business practices.
They should spend more energy looking at the true root cause of the issue... Peoples value of music has decreased signficantly over the past decade. This is partially due to the music industry flooding the market with poor music. And the fact that they no longer control all distribution channels.
After further review, I cant think of a single album that I would ever purchase for $20 again. Hopefully the music industry can come to grips with that...
With that said, my genious tip to all artists / record labels : You want to make money... go on tour and show off your true music talent live... hmmmmm...
Also wonder if Neeson has any problem with putting all the contracts and agreements that lawyers 'sell' to their clients online for free. I like to use a NDA and a few other instruments without paying the 'extortion' law firms charge.
I'm curious about jury selection for these cases - as a musician, would I be excused because I like to get paid for my work, and am more likely to agree that it's theft?
The analogy about buggies and automobiles isn't even close to accurate. When buggies were becoming less popular in favour of automobiles, it didn't mean people were free to steal cars if they wanted to. Freeing "consumers from having to buy songs they didn't want" didn't mean they didn't have to buy any songs - there are plenty of ways to buy single tracks online.
The constitution pretty much says that you could do what ever the hell you want with anything as long as you aren't making money off it. Also states what ever you buy is yours! DRM and the DMCA are illegal but our corrupted government officials are getting paid by executives of the RIAA and disney to keep it alive.
Disney is the major rule breaker and has been fighting for the last 40 years to build a virtual monopoly on intellectual property. These mafia's need to be stopped. If you think these organizations represented anybody besides their bottom line, your kidding yourself. The RIAA makes it their job to STEAL the work of artiest using lobbing and legal swindling. Not protect them. Anybody that agrees with them has fallen prey to commercial propaganda.
Something to note is that some how the RIAA can convict people with NO PROOF. Proof would imply evidence collected by law enforcement officials. Not a speck of their 'evidence' is legally collected. They could point at a random person on the street and say "He stole my stuff" and prove it in a court of law. Something smells fishy about that yet nobody seems to really care.
His argument that no damages are due because Tenenbaum made no 'commercial' use of what he did is utterly ridiculous. So if you rob a bank and hand out the money on the street outside, you're not a bank robber? What profit you made is irrelevant, it's called damages for a reason.
In the eyes of the company, there is no apparent loss of production, bandwidth, anything. Without going out to find downloaders, they wouldn't have any clue as to what the "damages" are. They don't know the motivations of any particular downloader. You can't equate 1 download = 1 sale lost. You can't assume 1 seeder = lost sales for every IP connection to that seeder, multiplied even more if you assume second or third generation seeding. You can't even assume the IP you grabbed is even of the person who did the sharing (if someone was latching on the wireless, in a public place, using Tor or another type of proxy, etc.)
It's more reasonable to seek damage of 99 cents per song. (or less)
I'm not saying nothing wrong occurred here, but the industry is being incredibly harsh to someone who actually liked their music enough to try and listen to it.
What this guy and others did isn't the same as, say, going into a furniture store and stealing an armchair. It's closer to sitting in the chair for a while inside the store, then leaving without purchasing it. Does that do harm to the chair (and by extension the store's profit)? Yes, strictly speaking. But the store still has the chair and if/when they sell it, they'll make about the same profit from it as they would have anyway.
I think it's pretty ridiculous for the RIAA to show up at these trials and pitch a fit like these people robbed them of millions when they can't even prove that downloading music illegally costs the music industry any sort of revenue. It's not right to download music illegally, but as long as it's apparently OK to throw lawyers at people and bully them into settlements worth thousands of dollars a pop based on no tangible evidence, the RIAA's bottom line is going to suffer from alienated customers.
The RIAA/MPAA (MAFIAA is more like it) claim it's difficult to prove guilt because of the nature of the technology and they're right. But that's not our problem here, our problem here is the violation of our Constitutional rights - innocent until PROVEN guilty. What they're *supposed* to do is get law enforcement involved to collect evidence that will hold up in court, but that's hard. They feel they should just declare you guilty and skip over all that hard stuff because, well, they want more money. Notice how much of that money makes it down to the artists themselves - hint, none. Notice their "evidence" is collected by another private entity spying on people's activities online (MediaSentry I believe), which is itself illegal. Notice their case always involves whether or not the files in question have been seen on your computer and not whether anyone else saw or better yet downloaded them.
Yeah, I'm sure AC/DC suffered greatly when I downloaded Black Ice off TPB instead of stepping foot inside a prostitute-mart. The reason I did it was because the people are suffering more under the illegal and immoral rule of the MAFIAA. Bottom line is they can buy better justice than I can, so I might as well do what we're all being accused of. There is no defense when they come calling, so the only answer is to at least be a little guilty.
If they were actually interested in battling "piracy", wouldn't they go after the guys who burn the copies back onto disk and sell them on the black market instead of single mothers and college students trying to decide what they like and don't like? Oh yeah, I forgot ... that's "hard".
Sure there are fantastic "epic" albums that could be argued nearly every song on them is worth every penny. But for every one of those the industry has churned out thousands more that were just crap, but people bought it because they liked one song....
The industry has been living off one hit wonders so long it is a punch line, and the bread and butter of the $$$$ have been selling and entire album on the merit of one song overall.
So now in the internet age people can buy just one song for a reasonable price because the industry had to concede something to get back the money they were hemorraging with all the "illegal" downloading going on. Sure it sucks for the music industry, but then again this is the same industry that has done some rather questionable things..... anyone remember Milli Vanilli?????
Karma is a cruel mistress!
Not to mention a kid who sneaks into a movie theater - should the MPAA be allowed to garnish his wages for life now?
Incidental sales from filesharing are as verifiable as the incidental damages the RIAA is claiming to be suing for. Many of us pulled down files, decided we liked them, and then bought more product from the same artists. I think the lawyers are costing the RIAA members more money than the file sharers.
And before someone rants about the law and copyright - do a little reading. Copyright was designed to be "leaky" - it has only been in recent years that copyright has been tightened to the current ridiculous extent in response to intense (and expensive) lobbying by media companies. Consider that many recent hits are derivatives based on someone else's work from a time when copyright and fair use was looked at in a more reasonable fashion.
And make no mistake - the artists and the support staff (backup singers, engineers, etc) are not benefiting from the RIAA's approach. Only the lawyers are profiting from this state of affairs.
- by i-arman July 29, 2009 3:08 PM PDT
- When was the last time you heard of someone being fined $2M for copying an OS, for instance? OS X and Windows are downloaded every day, but you don't hear about any huge lawsuits over it. The occasional company is fined because they were using software illegally, but that's about it.
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(24 Comments)If Windows 7, XP, etc. were suddenly "uncrackable", their sales would rise dramatically; countless script kiddies would complain long and loud, but would be forced to buy a copy, or go without the latest game.
But what if the same were to happen to music? If it were suddenly impossible to download music (not just illegal, but impossible), what would happen? I doubt very much that there would be a sudden rush to purchase five-year-old pop music.
I'm just waiting for the day that the RIAA goes the way of SCO...