Myth and Facts: The Latest Update in Joel’s Case

Hi everyone, it’s been a while and a new development has taken place in the case.  I wanted to both give you a reaction and clear up a couple myths.

We of course disagree rigorously with Judge Zobel’s decision to let the $675,000 damages award stand.  The judge states that the award is perfectly reasonable because it could have been as much as $4.6 million, that I was lucky that it was so low, and that I received repeated “warnings” that make me all the more culpable for ignoring.

Claim: It could have been much bigger, so what it stands at must be reasonable.

This argument sidesteps the fact that HR 1761, the Copyright Damages Improvement Act, wasn’t meant to be applied to me, that looking at the original context, I’m both 30 years out of its time, and 180 degrees out of its scope.

First, HR 1761 was a simple increase in damages numbers from the Copyright Act of 1976.  1976 was a year that knew neither the World Wide Web, Napster, Kazaa, nor any kind of remote electronic music copying.  Second, the law was written for commercial infringers, people making a business out of selling pirated copies.  Never in the 200-some-odd-year history of copyright law have any damage awards been intended for noncommercial infringers.  Of course, knowing the original context makes the range of $750-150,000 per song more reasonable: these people could have been making thousands of dollars on thousands of copies, so the justice system needs this range as a way of addressing just how much harm that person’s done in selling illegal copies.

Fact: HR1761 still isn’t applicable to me, since I never sold anything.  You may as well try me for murder for a parking ticket, sentence me to 10 years in prison, and then uphold the penalty because the penalty could have been life.

Claim: I received repeated warnings that I ignored, thus deserve a larger penalty.

The first such “warning” was a two-sentence conversation over the phone with my dad, expressing his reservations about music lawsuits.  Aside from the fact that I’m pretty sure that my dad was not working with the RIAA, as a teenager in high school, I was then an expert in ignoring my then 60-year-old dad’s advice on all things technological.  Um, isn’t that what teenagers do?  The other claimed warnings, I imagine, are related to the two paragraphs in ~100-page official student handbook of my college.  Putting aside the fact that Goucher College was not remotely involved, that I wasn’t sued for any infringement done on school grounds, and that the lawsuit was for acts committed in high school, I hope you don’t judge me too harshly when I admit that I did not read my student handboook cover-to-cover. Did you read yours?

You can argue that I’m responsible regardless, since the “warning” was there, that ignorance is no excuse.  I grant the possibility.  But when iTunes asks you to agree that you’ve read its Terms of Use, I’m going to go out on a limb and say you probably didn’t read it either. I hope you won’t take it too much against my character, just as I don’t think people who ignore far more prominent signs not to park in a loading zone during the week day are somehow morally awful people.

Fact: The word “warning” is being used very loosely.

Claim: I could have ended this all for $5000

With the very first letter from the RIAA, I took action right away, sending a money order for $500 instead of the $5000 they demanded.  At the time, it was all I could afford as a 20-something college student.  At one point, I offered $5250, which they declined — saying that too much time had passed and while the offer to settle was once $5000, it was now $10,000.  This lawsuit was never in my power to end, and when I tried to make amends, it was rejected.  I’m not the one with something to prove out of it and I’m not the one who can call it off.  They decided to stop suing users just after Professor Nesson and his students helped me begin to fight back, claiming they saw the fruitlessness of that direction. Yet the RIAA never waivered in carrying out the full force of their aggression against me, against Jamie Thomas, against Brittany Kruger, against Whitney Harper, even when the RIAA had received millions of warnings against doing so and even had admitted in 2008 that the warnings were right.

Fact: I offered $5250 early on, and that didn’t end this.

So what now?

Now, we appeal and continue fighting this.  And I, having just defended my thesis, continue my life as before, teaching students in the Boston area about physics and statistics and other things like that.

I am neverendingly grateful for all the support of all the people who have reached out to me, to my supportive friends, to Professor Nesson and his students, and most of all, my parents.  This will all be over some day, but until that day I feel you all here with me.

Cheers,

Joel

So what happened, Joel? Where are you now?

It’s been a while since my last post and you might wonder what’s happened in the meantime. Since October 2011, I’ve made trips to visit family and friends, filed the appropriate forms to defend my doctoral dissertation (defense date: April 13!), and had another paper published.  I mention these things first because this is my life – this is what I am focused on day to day.  I am not a paid spokesperson for a $10 billion business and my passions lie in doing and explaining physics, not working to change a legal paradigm.  This is the RIAA’s lawsuit, not mine.

In the time that my work and social life have continued, very little has happened in court.  Where we left it, the appeals court had overturned (former) Judge Gertner’s reduction to $67,500, reinstating the original cartoonish fine of $675,000 and remanding the district court to go through the remittitur process.  Remittitur is a Common Law practice where the presiding judge may adjust the damages without doing so on constitutional grounds.  The irony is that (former) Judge Gertner’s decision to grant a reduction on constitutional grounds may have been done deliberately to avoid a remittitur, which gives the RIAA the option for a new trial.  In the Jamie Thomas-Rasset case, following a remittitur, the RIAA opted for a new trial, which Gertner may have been intentionally trying to stay away from.

In either event, following Gertner’s retirement a new judge has been put on the case who knows only what he’s read, we’ve withdrawn our motion for remittitur, which the RIAA objected to the first place, and so we have the absurd situation of no one wanting to push the case through remittitur except for the legal system itself!  We’ve made arguments that because the original damages award violates due process, the award should be put aside by the court in favor of one that is just, but without the option from the RIAA of selecting a new trial (our briefs can be read here).

We have also petitioned the Supreme Court to hear our case.

So it’s not over.  The justice system still has the opportunity to restore sanity. And I think it will do that.  There’s too much history in this country of the legal system eventually fixing its mistakes, according an even justice in the face of contorted laws, of reconciling the balance between harm and damages.

So where is the case now?  As always, waiting.  Where am I now? Interviewing for jobs.

Appeals Ruling

You may have come here looking for our position on the appeals court’s ruling last.

As you may recall, a jury in 2009 decided that I should pay $675,000, or $22,500 per song, for making songs available on KaZaA in the early 2000s.

Post-trial, we filed a motion asking Judge Gertner to reduce the damages amount to something less excessive — and something not as outrageously unconstitutional as nearly a quarter of a million dollars.  Just as a point of reference, Joseph Hazelwood, the captain of the Exxon Valdez during its 1989 oil spill, drunk at the time of the accident, was fined $50,000. George Harrison, sued for plagiarism of his hit single ‘My Sweet Lord,’ was fined just $587,000.00.

Judge Gertner, agreeing that nearly three quarters of a million dollars was absurd, reduced the damages to $67,500.

The recent decision by the appeals court has reinstated the jury’s verdict, effectively dismissing Judge Gertner’s opinion as a seasoned and experienced judge.

As a graduate student, neither $67,500 nor $675,000 is affordable to me. But the fight is far from over. This case is as much about what happens in the courtroom as it is about bringing the issue to the forefront.

I’m glad and grateful for all the support I’ve gotten from my family, friends, Professor Nesson, Fern, Debbie, Jason, all the students who’ve worked on the case, and you, for your thoughtful comments.

–Joel

Music Piracy Not That Bad, Industry Says

“The Internet has been a blessing for the music industry. Although the RIAA and IFPI frequently complain about piracy, their own research shows that only 10% of all illegal downloads are considered to be a loss in sales. Meanwhile, piracy has shown them how to monetize music online, and turn it into profit.”

Click the link to read more.

if only joel lived in china…

From: anonymous
Date: 2011/4/28
To: nesson@law.harvard.edu


Hi Professor Nesson – Thought you might be interested to know that 30 out of the 31 songs Joel Tenenbaum downloaded can be downloaded legally and for free if you’re located in China. I got the list of songs from the wikipedia entry on the JT case and then searched the songs on google.cn/music (links included below).  If you try to download the songs in the US you get the message “暂时没有对您所在的地区提供下载试听服务 Music streaming/download services are not available in your region.” The google.cn/music site didn’t go live until 2008 – after Joel did his downloading – but still, the message it sends is quite remarkable: i.e. we’re going to give away our copyrighted material for free to the Chinese (presumably because they’ll download it for free anyway), but we’ll punish severely American college students who download the same material without paying.

p.s. query as to whether joel could be sued for downloading the songs from the google.cn site using VPN ??

Copyright Owner

Artist

Recording Title

Album Title

Sony BMG Music Entertainment

Incubus

New Skin

Science

http://www.google.cn/music/search?q=New+Skin

Warner Bros. Records

Green Day

Minority

Warning

http://www.google.cn/music/search?q=Minority

Arista Records

Outkast

Wheelz of Steel

Atliens

http://www.google.cn/music/search?q=Wheelz+of+Steel

Sony BMG Music Entertainment

Incubus

Pardon Me

Make Yourself

http://www.google.cn/music/search?q=Pardon+Me

UMG Recordings

Nirvana

Come As You Are

Nevermind

http://www.google.cn/music/search?q=Come+As+You+Are

Warner Bros. Records

Green Day

When I Come Around

Dookie

http://www.google.cn/music/search?q=When+I+Come+Around

Warner Bros. Records

Green Day

Nice Guys Finish Last

Nimrod

http://www.google.cn/music/search?q=Nice+Guys+Finish+Last

UMG Recordings

Nirvana

Heart Shaped Box

In Utero

http://www.google.cn/music/search?q=Heart+Shaped+Box

UMG Recordings

Nine Inch Nails

The Perfect Drug

The Perfect Drug (EP)

http://www.google.cn/music/search?q=The+Perfect+Drug

UMG Recordings

Blink-182

Adam’s Song

Enema of the State

http://www.google.cn/music/search?q=Adam%27s+Song

UMG Recordings

Limp Bizkit

Rearranged

Significant Other

http://www.google.cn/music/search?q=Rearranged

UMG Recordings

Limp Bizkit

Leech

Three Dollar Bill, Y’all$

http://www.google.cn/music/search?q=Leech

Warner Bros. Records

Linkin Park

Crawling

Hybrid Theory

http://www.google.cn/music/search?q=Crawling

Warner Bros. Records

Deftones

Be Quiet And Drive

Around The Fur

http://www.google.cn/music/search?q=Be+Quiet+And+Drive

Sony BMG Music Entertainment

The Fugees

Killing Me Softly

The Score

http://www.google.cn/music/search?q=Killing+Me+Softly

Warner Bros. Records

Red Hot Chili Peppers

Californication

Californication

http://www.google.cn/music/search?q=Californication

Warner Bros. Records

Red Hot Chili Peppers

By The Way

By The Way

http://www.google.cn/music/search?q=By+The+Way

Warner Bros. Records

Red Hot Chili Peppers

My Friends

One Hot Minute

http://www.google.cn/music/search?q=My+Friends

UMG Recordings

Beck

Loser

Mellow Gold

http://www.google.cn/music/search?q=Loser

Virgin Records America

Smashing Pumpkins

Bullet With Butterfly Wings

Mellon Collie and The Infinite Sadness

http://www.google.cn/music/search?q=Bullet+With+Butterfly+Wings

Interscope Records

Eminem

My Name Is

The Slim Shady

http://www.google.cn/music/search?q=My+Name+Is

Interscope Records

Eminem

Drug Ballad

The Marshall Mathers (EP)

http://www.google.cn/music/search?q=Drug+Ballad

Interscope Records

Eminem

Cleaning Out My Closet

Eminem Show

http://www.google.cn/music/search?q=Cleaning+Out+My+Closet

UMG Recordings

Beastie Boys

(You Gotta) Fight for Your Right (To Party)

Licensed To Ill

http://www.google.cn/music/search?q=%28You+Gotta%29+Fight+for+Your+Right+%28To+Party%29

Warner Bros. Records

The Ramones

The KKK Took My Baby Away

Pleasant Dreams

http://www.google.cn/music/search?q=The+KKK+Took+My+Baby+Away

UMG Recordings

Monster Magnet

Look To Your Orb For The Warning

Dopes To Infinity

http://www.google.cn/music/search?q=Look+To+Your+Orb+For+The+Warning

Sony BMG Music Entertainment

Aerosmith

Pink

Nine Lives

“Nine Lives” 1997 Standard Release available, but does not contain song ‘Pink’

http://www.google.cn/music/search?q=nine+lives

Arista Records

Outkast

Rosa Parks

Aquemini

http://www.google.cn/music/search?q=Rosa+Parks

Sony BMG Music Entertainment

Rage Against The Machine

Guerrilla Radio

Battle Of Los Angeles

http://www.google.cn/music/search?q=Guerrilla+Radio

Warner Bros. Records

Goo Goo Dolls

Iris

Dizzy Up The Girl

http://www.google.cn/music/search?q=Iris

UMG Recordings

Aerosmith

Water Song/Janie’s Got A Gun

Pump

http://www.google.cn/music/search?q=Water+Song%2FJanie%27s+Got+A+Gun

Jason Harrow: Day 2: It’s all about statutory damages

Reposted from JUST ENRICHMENT

After a first day that was full of panels focused mostly on the business aspects of the music crisis, today the lawyers gave their views on the problems facing the music industry. With cleverly named sessions like “The Current State of Copyright Law,” and “The Future of Copyright Law,” and with preeminent copyright thinkers like Terry Fisher, Larry Lessig, Google’s Fred von Lohmann, and many more taking to the stage, it was a pretty great day to be thinking about copyright law in the digital age.

There were many themes that were repeated by people of all different perspectives, but it became clear to me that the one change in the law that will solve the most problems in the simplest way is reform of statutory damages. As I mentioned in my preview post, I have a strong personal interest in this particular issue, but even I was surprised at how the specter of statutory damages lurked menacingly in the background of almost every discussion. The remedy has to be changed, and it is the one change that is simple enough that it seems genuinely within reach. The best way to see why is for to me to briefly explain the current statutory damages regime, quickly articulate the three most pressing Big Problems that I saw, and then show why statutory damages reform would go a long way to solving many of them.

Continue Reading >>

Jason Harrow: Day 1: What’s the value of a song? Zero.

Reposted from JUST ENRICHMENT

I took in a pretty full day of panels at Day 1 of the Rethink Music conference (my preview post from last night is here). While tomorrow’s lineup promises lots of great stuff on copyright law and policy, today’s schedule was pretty business-oriented. As such, I’ll hold off my explicitly legal analysis until tomorrow night. For now, I want to answer a question that was asked at pretty much every panel: what’s the value of a song in today’s online environment?

The short answer: zero. A single song is worthless — but that’s not a bad thing. Let me explain.

Continue Reading >>

Student Perspectives: Jason Harrow at the Rethink Music Conference

Reposted from JUST ENRICHMENT

For the next two days, this Humble Contributor will be attending a conference called “Rethink Music.” It promises two days of fascinating dialogue about the future of the music industry among artists, entrepreneurs, record company executives, lawyers, policymakers, academics, and students. Harvard’s Berkman Center has posted a great briefing book and a nice series of podcasts leading up to the event, and I figured I’d add my two cents about what I’d like to see over the next few days. I’ll be writing entries after the day’s events both Tuesday and Wednesday with my reactions.

I have a dog in this fight. For the last two years, I have had the privilege of being on the team of students that represents Joel Tenenbaum, a Ph.D. student who was sued for copyright infringement for sharing songs on KaZaA, which is a now-defunct but once extremely popular filesharing network. The industry settled with the overwhelming majority of defendants it sued, but Joel refused and became one of only two people to go trial. He lost, but the damages set by the jury were reduced by the trial judge, and his case is now awaiting a decision in the First Circuit. So, legally, I am directly adverse to the interests of America’s largest record companies and their trade group, the Recording Industry Association of America (RIAA).

But, from a long-term perspective, I’d like to think that I am not adverse to their interests at all. I love music. I want lots of people to make a lot of money in the music business — including the record labels. I want as many people as possible to have legal access, from everywhere, to the earth-shattering abundance of recorded music that exists online, and I want artists and engineers and record companies to be reasonably compensated. I really do.

Continue Reading >>

JFB featured by YouTube Show

The Daily Conversation: Student Shares 30 Songs, Gets Sued for $675,000 by RIAA

JFB Appeal: Arguments at the First Circuit

Weren’t able to join us at oral argument before the First Circuit judges?

Listen to the audio file of the hearing here.

Also: