Tenenbaum guilty of wilful infringement and faces $675,000 damages

September 2009


It wasn’t streamed live but the Joel Tenenbaum file sharing case in the USA certainly made the headlines. Tenenbaum, the 25 year old college student accused of illegally downloading and sharing music online, was defended by the ‘flamboyant’ (elsewhere described as ‘rambling’) Harvard law professor Charles Nesson who opened his defence by holding up a rectangular piece of plastic foam wrapped in cellophane which he said represented the compact discs that record companies sold before digital music became available online. He then sliced open the wrapper with scissors and hundreds of tiny jigsaw pieces fell in a pile in front of the jury in US District Court in Boston with Nesson saying “You have the ability to share, and this physical object’’. The 70-year-old professor then paused and snipped open the foam commenting “suddenly broke into a million bits. Here it is. Bits. . . . Can you hold a bit in your hand? You can’t. . . . And suddenly you have songs being shared by millions of kids around the world.’’ By the time of the trial Tenenbaum no longer denied that he shared music illegally but Nesson said his client was “a good kid’’ who admits using file swapping network Kazaa to share songs online but says he did it only because of his he love of music, not to make a profit saying “He was a kid who did what kids do and loved technology and loved music” adding “the Internet was not Joel’s fault …. the internet sweeps in like the way the automobile swept into the buggy industry”. Timothy M. Reynolds, who represented the four major record labels who were plaintiffs in the trial, said damages to the industry from free file-sharing are enormous and imperil “real people,’’ ranging from sound engineers to talent scouts saying “The defendant knew what he was doing was wrong at each step of the way, but he did it anyway,’’ said Reynolds, who added that Tenenbaum continued sharing music files on other peer-to-peer networks even after the recording industry filed suit. He also pointed out that Tenenbaum didn’t initially admit he was the person using Kazaa at his IP address alleging that the student “tried to blame others for his conduct – he didn’t take responsibility” and initially tried to pin blame on his friends, his sisters, a foster child living with his family and even a “burglar”. Wade Leak, a senior vice president at Sony and deputy general counsel, testified that illegal file-sharing has cost record companies profits and made it harder to nurture new artists, citing Bruce Springsteen as one performer who became a star only after releasing a couple of modestly successful records and Reynolds added that “The exact amount of harm is incapable of exact proof. But make no mistake about it: the defendant’s activities caused significant harm”. Nesson argued in court that the record industry was simply making an example of Tenenbaum’s activities – which are common practice amongst youth across the US saying “Everyone could download [songs] for free … and millions and millions did. Joel was one of those millions. In his way he’s like every other kid. There’s nothing that distinctive about Joel”. That said, Tenenbaum admitted in court that he had downloaded and distributed 30 songs and the only real issue for the jury to decide was the quantum of damages to award the record labels. Under US federal law the recording companies were entitled to anything between $750 to $30,000 for each infringement and the law allows as much as $150,000 per track if the jury finds the infringements were wilful. On the witness stand Tenenbaum admitted downloading more than 800 songs from 1999 to 2007 on his home computer and his mother (a lawyer specialising in family law) made it clear in her evidence that she had warned him about his downloading. Indeed the final witness of the first day, Tenenbaum’s father Dr Arthur Tenenbaum, told the court that he had once called his son at college, in 2002, to warn him he may be sued if he continued to use the P2P client. He told the court his son responded: “You only get sued if you do it a lot”.
The trail judge, Nancy Gertner, had already ruled out any form of ‘fair use’ defence and with the admission of perhaps wasn’t that surprising that after just three hours the jury found for the plaintiffs and the court ordered Tenenbaum to pay $675,000 in damages to the four record labels for wilful infringement. The sum represents US $22,500 per track. Tenenbaum seemed to take some comfort in the fact that the maximum jurors could have awarded in this case was $4.5 million saying “I’m disappointed, but I’m thankful it wasn’t millions” adding “to me it sends a message of ‘We considered your side with some legitimacy”. The postgraduate physics student now says he will appeal and dependent on that appeal probably apply for bankruptcy. Tenenbaum was originally offered a settlement at approximately US $3,000 by the Recording Industry Association of America – which he countered by offering $500 saying he couldn’t afford to pay more – and then after some further negotiations Tenenbaum says he refused a settlement at $10,500 which he says was demanded by the RIAA – in hindsight a substantially cheaper option.
Read more: http://www.nydailynews.com/money/2009/07/31/2009-07-31_court_orders_boston_university_student_joel_tenenbaum_to_pay_675g_for_illegally_.html#ixzz0MvZdgiKq

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