The Copyright Wars Continue in Boston
On April 4th, the First Circuit will hear oral argument on the appeals of Joel Tenenbaum, the Recording Industry Association of America, and the U.S. Department of Justice. All three parties appealed after the trial judge reduced a $675,000 jury verdict for sharing 30 songs down to $67,500. The only issues remaining on appeal regard the propriety of such an award for the conduct.
In 2005, the Recording Industry Association of America became the first entity in American history to sue ordinary consumers for copyright infringement. Six years and approximately 12,000 lawsuits later, only two defendants continue to stand against this overwhelming litigation effort. Tenenbaum will become the first filesharer to reach the appellate level after trial.
The RIAA, represented by former Solicitor General Paul Clement, has argued that a $675,000 award for an individual college student sharing 30 songs “easily” withstands constitutional scrutiny. Along with the U.S. Department of Justice, they assert that the Copyright Act operates with “full force” to all infringements and that the Constitution would allow an award of $4.5 million dollars for sharing the 30 songs in question. Moreover, that number could increase ad infinitum, limited only by the number of songs the plaintiffs wish to sue over.
Represented by Harvard Law professor Charles Nesson and student Jason Harrow, Tenenbaum will argue that the copyright statute, is being misinterpreted and misapplied and runs afoul of the Constitution. First, the statute was never meant to cover consumer copiers and never has until the present litigation campaign. Second, Due Process will not tolerate an award that departs so egregiously and arbitrarily from any reasonable assessment of the harm actually caused by Tenenbaum. Third, the process by which the jury arrived at the award was replete with error.
Interestingly, the U.S. Department of Justice advocates a new trial to avoid reaching the weighty statutory and constitutional questions, hoping that another iteration will either force settlement or return an award that doesn’t offend the Constitution. However, this course would rectify none of the underlying issues and is more likely to yield something similar to the Thomas-Rassett case in Minnesota, which is under consideration for a fourth re-trial. Neither Tenenbaum nor the RIAA supports such an option.
Although the RIAA has announced that it will not file any more suits against consumers, such a statement is no cause for relief. There is no guarantee how long the major labels will continue to abstain from suing. Moreover, even if the RIAA never filed another suit, their litigation tactics have already been imported into other industries as a successful business model for extracting exorbitant settlements for alleged infringements by ordinary citizens through print journalism and film. Perhaps worse than taking advantage of the statute, the litigation campaign has fostered a culture of copyright maximalism that has escalated to the point of arresting website administrators and threatening them with up to 5 years in federal prison for copyright infringement. Last week, the Obama administration released a white paper advocating wiretapping for suspected copyright infringers.
At 9:30 AM on April 4th at the Moakley Courtroom in Boston, the First Circuit will have the opportunity to inject some much-needed sanity into this grim situation. The argument is open to the public and all supporters are encouraged to attend. For more information and to RSVP, visit http://www.facebook.com/event.php?eid=186748851370187
“all supporters are encouraged to attend.”
As a supporter of the copyright holders, I’ll be there!
Very exciting- I wish I could attend, but looking forward to reading the filings. Good luck!
A couple of years ago a NC police officer who was RECORDED discussing downloading for free. The officer named the name Kazaa which has appeared in numerous lawsuits and talked about how the songs were arranged in groups and you choose the songs and just click and get them. He said it was the thing to do everybody was doing it. He bet his daughters had downloaded a THOUSAND SONGS on his computer. He said he had to get a new computer his old one FILLED UP WITH MEMORY. He laughed and said he hoped the federal government did not come in and investigate him.
Shortly after this conversation we began reading the news articles people were being sued by RIAA and the FBI. They were calling piracy a crime of stealing and calling these people thieves. The RIAA and the FBI on their websites encourage people to report piracy. The FBI Anti Piracy Warning says they investigate. At that time we reported the officer’s conversation as well as his name to the RIAA and the FBI. It was ignored. A few months ago we were still reading news article people still being sued. Three of these cases that stood out were Joel Tennenbaum, Jammie Thomas and Whitney Harper all having to pay outrageous monetary amounts. Now feeling ignoring the officer’s conversation was unfair we began reporting the conversation to the RIAA the FBI the PD and several other anti piracy organizations along with the officer’s name asking why this was not investigated. Again it continues to be ignored. If piracy is a crime as the FBI the RIAA and others proclaim why was this conversation ignored. Considering piracy is being called a crime and the thousands of people that have been sued shouldn’t this conversation be investigated to see where the THOUSAND SONGS this officer talks about came from, who the everybody is that is doing this police officer’s conversation be investigated to see where the THOUSAND SONGS he talks about came from, who the everybody is that is doing it, and if he or his daughters may have committed what they are calling a crime. Ignoring this conversation seems to be an injustice to all the people that have been sued as well as to us as a citizen reporting it and it being ignored. How can they sue some and ignore a high ranking police officer discussing downloading music in this way. I feel this is wrong and don’t understand how this is allowed.
[...] I’m going to be attending oral arguments here in Boston before the First Circuit Court of Appeals in the Sony BMG Music Entertainment v. Tenenbaum (Wikipedia backgrounder) later this morning. Appellate briefs are available here, summary from the defendant’s perspective here. [...]
I think they should award the RIAA a settlement of $5 per song.
About $2 per song would account for lost revenue due to Mr. Tenenbaums file sharing and the remaining $3 could serve as punitive damages.
Thus Mr. Tenenbaum would owe them $150. This would be very fair.
The thing that peeves me to no end is the outrageous settlements they are asking for which are unreasonable by any means of assessment. They are based on the premise that every download equals a lost sale. Truth is, that those who download would likely choose not to get a song at all if they had to pay for it. Many of them probably wouldn’t even be able to afford to get the song if they couldn’t download it for free.
If I would have to make a guess, it would be that less than one percent of every download equals a lost sale, and as such, downloading music is mostly a victimless crime.
The loss in sales of the major labels has more to do with the low quality over-produced, over-compressed (and normalized to 96% volume) generic garbage they have been putting out over the last 15 years that no one in their right mind would pay for. Personally I choose not to listen to it at all, but I can see why and how many would justify just downloading it.
So if we come, may we make a statement to the court? :p
Thanks for the sensible critique. Me & my neighbor were just preparing to do a little research about this. We got a grab a book from our local library but I think I learned more from this post. I am very glad to see such wonderful info being shared freely out there.
What’s up everybody, here every one is sharing these experience, thus it
You’re killing it on this blog, man.