How it feels to be sued for $4.5m
In case you missed it at the Guardian.
By Joel Tenenbaum
To a certain extent, I’m afraid to write this. Though they’ve already seized my computer and copied my hard drive, I have no guarantee they won’t do it again. 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. I face up to $4.5m in fines and the last case like mine that went to trial had a jury verdict of $1.92m.
When I contemplate this, 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.
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 Recording Industry Association of America (RIAA) has operated under. “How did they get you?” I’m asked. I explain that there are 40,000 people like me, being sued for the same thing, and we were picked from a pool of millions who shared music. And that’s when a look appears on the face of whoever I’m talking to, the horrified “it could have been me!” look.
The reason this has remained so silent despite passionate opposition is that nearly all people settle. My story of becoming an exception started four years ago.
In 2005, my parents received a letter from Sony BMG, Warner, Atlantic Records, Arista Records, and UMG Records claiming “copyright infringement”. They were given a number to call, which was their “settlement information line”, a call centre staffed by operators who, we are emphatically told, are “not attorneys”. The process of collecting money from these threats was so huge, they had set up a 1-800-DONT-SUE-ME-style call centre.
The operators did little more than ask how you would pay (they wanted $3,000, I believe) and repeated intimidating lawsuit statistics. I sent them a money order for $500, which they returned. I told them I couldn’t pay any more. We discussed whether I might qualify for “financial hardship”, and then I stopped hearing from them, which I didn’t question. I graduated from college and began studying for my physics doctorate.
And then in August 2007, I came home from work to find a stack of papers, maybe 50 pages thick, sitting at the door to my apartment. That’s when I found out what it was like to have possibly the most talented copyright lawyers in the business, bankrolled by multibillion-dollar corporations, throwing everything they had at someone who wanted to share Come As You Are with other Nirvana fans.
I had assumed that as an equal in a court of law in the United States, my story would be told and a just outcome would result. I discovered the sheer magnitude of obstacles in your way to get your say in court. And even if you get to trial, (which only one other person, Jammie Thomas Rasset, has done) you’re still far from equal with the machine controlling 85% of commercial music in the US.
But to even start fighting assumes you (a) know what you’re even being sued for and (b) have a concept of what grounds to fight it on. Most of the time you know nothing except for the huge stack of paper written in legalese that says you owe several thousand dollars and it will probably cost you more than that just to hire a lawyer. If you can find one.
I had frequent contact with one of their Colorado counsel. While she was impudent to the point of vicious (”Come on Joel, I think you did it”), I continued to use phrases like “I respect your position” and “we have a respectful difference of opinion”. I have no record of this intimidation because the person in question made sure to keep contact restricted to phonecalls.
Every conversation consisted of her trying to get information out of me about my defense, telling me how much bigger the settlement would be if I didn’t settle now. Shaken, I would call my mother, who was a state-paid lawyer in child custody cases, and ask her what to do. We blindly fired all kinds of motions at them. Eventually my mother became afraid to answer my calls, worried it would be about the case. For the court “settlement” I offered $5,250, which the RIAA declined, asking $10,500. I saw myself on a conveyor belt, being pulled inexorably toward the meshing of razor-sharp gears.
Then in summer 2008, I arrived home to find a letter addressed to me. The return address said “Harvard Law School”. Curiously, I opened and read it. “My name is Charles Nesson, professor of Law at Harvard. I caught wind of your case,” it said. “I can be of any assistance, don’t hesitate to call.” I called. Nesson picked up. I said, “Yes, you can be of assistance!” My mom drafted a letter to him, summarising where we were. The opening line read, “Dear Professor Godsend”.
Since then I’ve learned that you don’t have to accept phone contact from the RIAA lawyers, but could demand correspondence by mail. I’ve been deposed twice – for nine hours one day and for another seven a few weeks ago – where I was asked every irrelevant question about my life, cars that I owned, websites I’ve operated. The RIAA will try to denigrate this, saying I was only talking for seven hours and then five and a half, but I was stuck in their office the entire time. You think it makes any difference to me when I can’t work?
My sisters, dad and mother have all been deposed. My high-school friends, friends of the family too. My computer’s been seized and hard drive copied, and my parents and sister narrowly escaped the same fate for their computers. And the professor who supervises my teaching is continually frustrated with my need to have people cover for me, while my research in grad school is put on hold to deal with people whose full-time job is to keep an anvil over my head. I have to consider every unrelated thing I do in my private life in the event that I’m interrogated under oath about it. I wonder how I’ll stand up in a courtroom for hours having litigators try to convince a jury of my guilt and the reprehensibility of my character.
But the support helps. I’ve had a great team of Nesson’s students helping and the professor himself has been magnificent. Most of all, I’m touched by the warm messages of support from the people who’ve written in, Twittered, and Facebooked me (though I’ve been too paranoid to friend strangers lately). Best hopes to others dealing with the same: Brittany Kruger, Jammie Thomas, and the other 39,997 of us.
The trial starts today, 27 Monday July. Regrettably, it won’t be webcast as we requested due to the RIAA’s successful opposition, but we will tweet (with the hashtag #jfb) and blog as much as possible, and there is a website where you can follow us and learn more.
Deeply sorry dear boy. Probably this won’t help, I am an artist, but did not come into art to make money, and have always been glad to give away my work gratis. Come to think of it, so have all my friends. I have a philosopher’s degree too. To my mind the truth of the matter is that file sharing is today’s form of calling one’s friends round to listen to records. If I have got this right, the sustained level of ‘official’ sales on part of the media industry may suggest that indeed people use the flile-sharing facility that way: they give the music a try and buy (whether for themselves or to give away what they come to value). Therefore, to establish intent, the opposition must prove that your understanding of the social function was right, but the intent malicious. It is in this way that the moral reprehension carries over from the situation we know: that of the person who enters the shop, intending to shoplift, or their neighbor’s house to carry away the silver. If the American authority does not want to go down that path, its law enforcement becomes illiberal, as it severs your disposition towards its artists from your action.
In the first case, have they got proof of your malicious intent? Do you have actively discouraged friends from buying authorial versions, have you made gifts of unauthorized music? That considers the premise of your disposition. As to your understanding, one may ask, ‘What do the statistics say?’
Further, should the court be inclined to accept their line of argument–NB if I have got it right–understanding it as a force outside of our moral structure (which runs against the grain of British law, but that perhaps can only be pursued at second order), should their goods’ packaging not bear a warning sign similar to that of the tobacco industry (a ‘Beware the Dog’ warning)? I.e, had they done their part to let you know, AT THE TIME OF YOUR ACTION, of the NATURAL –as opposed to moral–threat you are now facing?
I am under the impression that the court will not touch matters of principle, as its instinct is to protect the letter, so as to keep things manageable. You might force the point home, however, if you stuck to your guns and called twenty persons, saying that ‘Joe gave me this album (see, not counterfeit) at Chrismas/ on my birhtday, etc’, and by bringing your whole collection of music to the court, thereby forcing the hand of the bench.
I am afraid I was no help at all. I do not twitter, still would like to know how the case fares. If you have a mailing list of people you keep posted, could you please add my address to it?
In the unlikely event I could be of any further assistance, please contact me.
All the best,
Michael Diakakis
Good luck in the next few days. The whole thing is so ridiculous that hopefully we will be chuckling about “those crazy times, remember!” in a few years. You — and the people working with you — will have been the foot that tripped the ugly giant.
Many are following the twitter feeds, and reading this and other blogs. It is clear to all of us that justice is on your side, even if the justice system is still wriggling uncomfortably!
Good luck with your case. I don’t share music files–honestly, I think artists deserve to be paid for their work. But I think that this persecution is ridiculous. The punishment far, far outweighs the crime. They are trying to make examples out of you and the others in your situation, and that isn’t justice. I hope things work out for the best for you.
Kelios
hey,
GL on the case. If it’s any help I find that the laws of America don’t reflect nor represent the people’s will of sharing music REGARDLESS of the laws. Sure that won’t help your case other then the MPAA/RIAA guys abusing the legal process to achieve MORE profits (instead of being grateful for the money they DO receive).
Someday regular people will have the option to vote up/down unjust laws being enforced like this here. It’s harmless and wastes the court’s time/tax payer money to oppress the ones paying the taxes.
Legal grounds sharing music is/should be fair use. The original copywrong laws were created to protect from PROFITING from sharing (vs the sharing for ratio or free which goes on now). Since your case has no money coming in I’d push that line /w your legal counsel.
We, the people, need a GOOD precedent setting WIN for such abuses. Fans would NOT be sued by artists nor do 90% of artists want to pursue legal action (but their contracts give their power away to these corporations).
70-90% of our public do NOT agree with this law but have yet to put this as a ballot voting decision, referendum vote among the populace, have any power/idea(s) to reform this top heavy law.
I’m very surprised no one of the 40,000 people have yet to take arms vs these people using financial terrorism to scare normal people into submission/dangerous civil rights abuses just to settle up w/o a fight.
Inspiring. God speed on your fight. Soon net citizens will be pushed into running encryption to prevent such privacy abuses even if you fall.
If you are found guilty but don’t have an unreasonable amount of money (millions) to pay them what happens then? Bankruptcy protection like our banks and carry on? Auto companies and financial sectors get bail outs and help when in financial trouble yet our people don’t enjoy the same protections from our government.
Sad they no longer represent “us”. Guess that means more government “upgrades” to fix such problems.
CV
Hi Joel,
I hope all goes well in court this week. What the RIAA is doing to you is criminal. I would understand if they asked for a token $100 fine from a fairly determined group of people, with appropriate measures for recourse. This, however, is malicious. Taking your numbers, 40000 people, each settling for $3000, the RIAA would have already collected $120000000 (that’s $120 million). Suppose they only collected $60 million of that after legal fees, collection costs, etc. Your $4.5 million, while significant, is not the overwhelming factor here. They are making you into both an example and a martyr. Beyond ruining your financial future, what will they accomplish? File sharing has begun to fall by the wayside in recent years. The availability of high quality media for free or near free online, legally, has boomed. The RIAA is missing the boat. Consumers will follow whatever reliable means they have of obtaining products for a low cost. File sharing is no longer reliable, but there are other means, profitable to the industry, that consumers are flocking to (iTunes, for instance). By pursuing this case and alienating their target consumer base, the RIAA is doing irreparable damage to themselves.
You and I do not always see eye-to-eye, but on this matter, we are agreed. Not only should you win this case, but there should be legal recourse for you to go after the RIAA for maliciously dragging you into this law suit. Unfortunately, I fear that your case is much stronger in the court of public opinion than in that of law. It is a good thing that Prof. Nesson has taken the case. The fourth amendment argument was a good one; it shows just how removed the legal system is from technology.
I wish the best to you and your family.
-David Greenberg
I hope everything goes OK. What the RIAA is doing is way overboard. I can see a fine for $500 but not a fine for 4.5 million. Hopefully this blows up in The RIAA’s face. Maybe you can counter sew for them copying your hard drive or sew one of there children for coping music (it wouldn’t be hard to find one). Given the lack of technical knowledge from the judges im surprised it wouldn’t end in a mis trial. I sure you can find some one in that judges family that downloads music. I would play as dirty as i could cause what there doing to you is rotten.
You “only wanted to share Come As You Are with other Nirvana fans”.
Yes, but other Nirvana fans know where to buy the CD. It’s not yours to share! Let the other Nirvana fans buy their own music. It’s not YOUR PLACE to make sure they are taken care of.
I have seen comments that say you should have been asked to cease and desist, and only then, should you be sued. Well, you WERE asked to “cease and desist”. You KNEW you should cease and desist. You reportedly told your Dad that “you only get sued if you do it a lot”. Duh, that means that you knew it was illegal. Stealing money by credit card fraud is only bad if you do it a lot, too.
The copyright holders (whether you agree with them or not) have made it clear that they were going after people who shared music files. Yes, it’s not the sanest law in the land, but guess what: YOU DON’T GET TO CREATE THE LAWS.
I don’t agree completely with all of the laws about licensed software, but guess what? I follow them anyway. It’s not up to me to decide what laws are worth following.
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Hmm, I’ve enjoyed reading your blog. I heard a lot of people are more engaged when learning visually so maybe think about adding more videos to your blog posts