Overview
In 2003, Joel received a notice accusing him of downloading music through the P2P service, and told him that he could settle the case for $3,500. He called the payment hotline, offered $500, and sent a money order in that amount. That offer was denied.
In 2007, a complaint showed up on his doorstep after years of silence requiring that Joel appear in court. Rather than backing down, like the other 30,000 people, Joel chose to stand his ground and elected to proceed pro se with the help of his mother.
Joel filed an answer with a counterclaim asserting abuse of federal power and that the excessive damages were unconstitutional. Joel appeared in court where the Judge ordered the parties into settlement. In the settlement, Joel offered to settle for $5,000. The opposing counsel denied and counter-offered a settlement of $10,500 to be paid over 1 year. Joel declined.
That’s where Professor Charles Nesson and his team of passionate students come in.
In October 2008, Joel was deposed for 9 hours straight. Since then, his parents, his sister, and other close family friends have all been deposed by RIAA attorneys.
The trial date has been set for March 30, 2009.
What You Should Know about the Case:
* We are not arguing against copyright law. As lawyers and law students, we support the legal infrastructure and reasonable enforcement that our legal system permits.
* We believe that 1) the extent of the damages this statute permits are unconstitutional; and 2) the music industry is abusing federal power by using the court system capriciously.
* By understanding young people’s interactions with digital new media such as internet, cell phones and video games, we may address the issues their practices raise, learn how to harness the opportunities their digital fluency presents, and shape our regulatory and educational frameworks in a way that advances the public interest.
Some Quick Statistics
* 30,000 people have been accused and almost every single case has settled.
* The average settlement is between $3,000 - $12,000.
* When this goes to trial, this will be only the second case to have its day in court. The first one ended in a mistrial. But in that case, the judge commented that he believed that the damages sought were something like 1000 times excessive.
* There are actually 133 people in the same docket as Joel.
How damages work: The Digital Theft Deterrence Act sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation. That means Joel could be forced to pay $1 million for the seven songs if it is determined that his alleged actions were willful.
Your summary appears to be simplistic. The claims in the original “Complaint against Joel Tenenbaum” accuses Joel of using the online system (Kazaa) “to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.”
Three separate claims, only one of which is downloading music. Let’s look at each claim individually:
1) download: The MediaSentry screen caps show what Joel is allegedly offering for upload, for others to download (”making available”). This does not prove that he downloaded the songs originally. If the plaintiff has evidence Joel downloaded the songs originally, I didn’t see it referenced anywhere on this site.
2) distribute: the owner of the Kazaa account (Joel or otherwise) did not violate any of the exclusive rights in § 106 by uploading the songs to MediaSentry. Paragraph (3) protects the right of the copyright owner “to distribute copies…of the copyrighted work to the public.” According to Title 17, “’Copies’ are material objects … in which a work is fixed….” Uploading a file online does not distribute a material object, but rather “distributes” electronic pulses (analogous to sound waves, which we don’t consider “copies”). Saying uploading is protected distribution (by the legal definition) is like saying that playing a song for the public to hear (and possibly record) is distribution. It’s not. It might violate performance rights, but they didn’t include that in the complaint.
Also, as you should be aware, the law (and the complaint) specifies distribution “to the public” is protected. MediaSentry, as an authorized agent, should not be included in “the public.”
3) make available: I’m sure you’re all caught up on this point of debate, but it’s not part of copyright law, and even the judge in the Jammie Thomas case thinks his jury instruction was not correct.
There you go, now you can exonerate poor Joel. Hopefully you can convince the judge that the sought-after damages are excessive as well…
I’ve posted this in the “think like a lawyer page” as well, I’m not sure where it’s most appropriate…
Oblib,
Lawyers for Sony BMG et al. claim they can prove the “illegality of the bits” (i.e. that they were downloaded instead of for example format shifted from a legal source that defendant might had in his posession) in violation of copyrightlaw by joel because of the metadata they claim that their (allegedly illegaly acting) “third party” allegedly had downloaded from a computer system that plaintiffs alledge was one under control of Joel.
(you might have seen the youtube links of the 1st Cir. argument. That uploader has copied metadata (and text that seems to be written by Ray Beckerman into the screenfield).
Now if I were a RIAA member I would claim that this metadata proves that this YT uploader simply put “my” transformative work of the public domain oral argument and uploaded it.
That he could have used the same source material and might have done the same hard limiting procedures I did and that this would have created the identical digital bits I must ignore here if my argument like the rediculous one of RIAA lawyers would be one that will succeed in court.
(But unfortunately most of your US judges seems to not understand the technical details good enough to see that RIAA argument is bovine feces when they claim they identified the bits as illegal because of the metadata of the files. See the motion for summary judgement in the Lava records v. Amurao II case where RIAA lawyers argue exactly with the metadata as proff that the songs they found on the harddisk were illegal copies instead of ones own format shifted ones.
Imo did Sid Leach(sp?) a good job for the guy he defended when he wanted all those admission of facts and the discovery requests from Sony, EMI, BMG and its other co conspirators where he demanded “originals” from them of the recordings that they claimed his client had illegal copies from.
nice info.
You should attack copyright and copyright transfer as unconstitutional,even if only for PR reasons.Americans are almost religious about the constitution and quoting “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” and then having Lawrence Lessig argue that copyright in it’s current form doesn’t promote progress and maybe some musician like Fleet Foxes (http://news.bbc.co.uk/2/hi/entertainment/8097324.stm ) testifying how piracy helped them might be enough for a jury. (Paulo Coelho is also someone that could help).
Besides we are all used to not question the law and in this case without doing so Joel has no chance he’s just a dirty pirate and only attacking copyright in it’s current form can change that if not in court then in the mainsteream,high profile media.
That’s really weird wording- “average settlement between $3,000 and $12,000″. Not sure I know what that means.
But if it was possible to assume that the average settlement fell exactly halfway between those numbers ($7,500) that would be a total of $225,000,000 collected.
A quarter of a billion dollars. That’s a lot of moola.
Joel,
I’ve never heard of ‘downloading’ or ‘music’ but I’m sure it’s exactly the same as paedophelia and therefore you should face a fine. I’m a mathematician and I’ve worked it out that for downloading 7 songs, you should be charged exactly Infinity Billion Dollars (US).
You took something without paying for it, and you then made it available for others to do the same. You sound guilty to me, and no amount of intellectual gymnastics changes it.
have fun in Jail.
There was a time a long time ago where nobody published any works, people who worked with mercury had to find out for themselves that drinking mercury would kill you slowly over many years. There was a name for this age, it was called the ‘Dark Ages’. Then philosophers and thinkers began publishing works for all to see. Information, works, data all to be learned by others! Upon the completion of this age is called the age of Enlightenment. This single event of a man deciding to publish and make publicly available all kinds of data was the one idea that turned humanity from a band of individuals to a collective of team players. Each time you publish your good work for all to see, you too are contributing to this great revelation.
Joel Tenenbaum, take these RIAA ****ers to the supreme court this law has GOT to be fixed.
Lets face it, most people have something ‘copied’ somewhere. A CD. A DVD. Some music. Hey, most people taped off the radio when they were a kid. Did they all go to prison?
Even teachers are to blame. In school, the teacher hands a book to a pupil and say, ‘Hej, copy this 20 times for the class”. Did that teacher ask for authorisation from the copyright owner…..no way. But they’re not in prison either.
I agree, artists should get paid for what they do, but they should get paid reasonably. If we pay a film star 20m to be in a film, the DVD will cost 20USD. If we pay them 2m (which lets face it’s lots to money anyway), the DVD will cost say 8USD. Everyone would buy it then.
Artists should get with the times. RIAA and MPAA stop picking on Joe Bloggs. Stop hitting us with you big, expensive lawyers. The question’s not whether or not you’re right or not, it’s who’s got the most expensive lawyer.
hellish, I agree with your point, but you should be aware that it’s USUALLY not the artists that are doing the suing (unless they’re Lars Ulrich), it’s the record labels and distributors. I would say that the vast majority of artists support music-sharing, since they’re not making money on CD sales but benefit greatly from the exposure they receive and fans they would not otherwise reach. It seems to be that the only artists that speak out against MP3 sharing are the ones that are already rich.
@Alex
Are you dyslexic?
1) Paedophelia isn’t in the dictionary (and there is a red squiggly under it as i type this)
2) You’ve never heard of ‘music’ or downloading? I can’t understand this seeing as your on a computer
3) Infinity isn’t a number
4) Your a dipshit
@Wyatt
It’s you’re.
@Wyatt:
Not everyone in the world uses American English spelling. “Paedophelia” is the British spelling of the word, much like they spell “Color” as “Colour”, etc. You don’t know what you are talking about.
I agree with hellish and jxk on this one.
LOL you guys are all missing the point, Alex was trying to be funny. Think about it, someone who really hasn’t heard of downloading but can post a comment on a website? A mathematician who puts infinity in front of billion? Obviously it was a little too esoteric to be funny to most. I chuckled a little on the inside, but I laughed at the comments responding to it more!
Thank you, Winky. You saved me the trouble of typing up a long response.
Hmm…. I think I have to be executed because I’ve “downloaded” a lot of songs (mainly TOP10 hits) memorizing them into my tiny brain HDD….and I distributed them by singing to the others……and them…did the same….
I wonder…if any guy from RIAA didn’t ever played a downloaded song………..
Good luck Joel !!!
Just wanted to add that during the time of cassette tapes a law was passed in the US making it perfectly legal to copy any copyrighted media and reproduce it, as well as distribute it to friends. Basically, if you bought a VHS or cassette tape, copied it, and gave the copy to someone you knew, you could not be held in violation of the law. The courts found that since you bought the media, it was now your possession and you were free to do what you wanted with it, so long as you didn’t change the original works. (Much like copying pages from a book so long as you credit the author.)
The issue with p2p file sharing is that you, as the downloader, never purchased the original copy, and then distributed to complete strangers an undefined number of times.
Obviously this law could never have anticipated the capabilites of digital file sharing on the modern internet, yet it is interesting to realize that copying copyrighted material has been found to be legal in our courts. Can you imagine you parents being sued back in the day for copying VHS movies? Of course not, it would have been too hard back then to track down an offender. More freedom for us also means more freedom for the regulators, as clearly can be seen by what’s happening here.
Also wanted to add that the case referenced was Sony vs. Universal. Basically it was found that recording/copying equipment was legal, and therefore the burden was not on the equipment manufacturer nor the end user to uphold copyright laws. If the media producer knowingly distributed media that was easily able to be copied by the then commonplace reproduction equipment, then the copying by the end user did not violate any copyright laws. (Just like the book copying example.)
I would also like to point out that in the current lawsuits I have read about, the RIAA goes out of their way to make the point that the defendant is guilty not for mere possession of copyrighted material, but for distribution. They argue that files on a defendant’s PC are not format shifts (which would be legal copying). Instead they log IP addresses use trackers in order to show the defendant engaged in the act of sharing.
Is it not legal to hear a song bought by a friend on their radio? Is it then not legal to record this song while it is playing with the appropriate legal equipment designed to do just that? If the distributor chose to allow their media to be broadcast in whatever manner, then they also chose for it to be copied by the current legal technology available.
Copyright laws should reflect what they were originally intended to do: prevent a distributor from selling copies of media whom another distributor has the rights to. Just like a patent.