Almost five months after we last sat in Judge Gertner’s courtroom requesting that she either reduce the damages or award a new trial, Judge Gertner finally made a long-awaited ruling today.

In our motion to the court, we argued that that the jury’s award of $675,000 in statutory damages was grossly excessive and thus violated the Due Process Clause.  In her decision, Judge Gertner agreed, and reduced the damages Joel owes to $67,500 — one-tenth the original sum.

“Reducing the jury’s $675,000 award,” she wrote, “also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.”

Judge Gertner noted that $675,000 was far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement.  In fact, she called the damages previously awarded “simply unprecedented and oppressive.”

We feel vindicated that Judge Gertner agreed that $675,000 was an unconstitutional award.  But it is only a step along the way toward recognizing the abusiveness of the RIAA’s litigation campaign.  The next step is to demonstrate that Joel was denied a fair jury trial when Judge Gertner told the jury in her instructions that it could award an unconstitutionally excessive amount.

A $67,500 pricetag for 30 songs is still a bill Joel cannot afford.  Even Judge Gertner added, “Significantly, this amount is more than I might have awarded in my independent judgment.”

Songs on iTunes are about $.99-$1.29 a piece.  What do you think of Judge Gertner’s decision? Chime in under comments or email us at joelfightsback@gmail.com.

Hi everyone!  Thanks so much for checking in with us.  The case is definitely not over; rather, we’re in a holding pattern waiting for Judge Gertner’s decision regarding our remittitur motion.  (See the details in our blog post)

We asked the court to adjust the amount of the award, as was done in the Thomas case.  The difference here is that Judge Gertner has the foresight of the Thomas case. There Judge Davis granted remittitur to $54k or new trial.  The labels offered a $25k settlement to Thomas with the remittitur verdict redacted, which she then rejected.  The labels opted for a new trial.  In our hearing back in February, the conversation with Judge Gertner went something like this:

Gertner: If I do as Judge Davis did in the Thomas case, would you likely do as the Plaintiffs have done in the Thomas case?

Reynolds (one of the RIAA’s attorneys): Yes.

So it seems like if Judge Gertner grants remittitur, the music labels will request a new trial.  Or she may grant a new trial based on our motion for one.  Or, she may just allow the jury’s decision to hold Joel liable for $675,000 for sharing 30 songs.

What do you think she should do?

harper-petition-for-cert

Whitney Harper’s case is important, though its importance has yet to be noticed. It provides a key step in the legal logic that the RIAA will use down the road to justify ISPs terminating user’s net connections for violating copyrights.  Innocence is no defense.

Joel, do you still download music?

I buy my music legally now. And I do not fund the RIAA in the process.

This is a slightly nuanced decision because although the RIAA only has four member companies, those companies own countless subsidiaries which together control 85% of music in the US. Motown Records, for example, has been owned by UMG (Universal Music Group) since 1998.

Through riaaradar.com, I determine if music I want is put out by RIAA members.  If it is, I’ll buy the CD used on Amazon.  If it’s put out by a non-RIAA label, I gladly buy it on iTunes (iTunes has been DRM-free since April 2009)

I also make the effort to support the artists by seeing them on tour, which is how artists make the majority of their money, and how artist revenues can be up even as those of record labels are down. I’ve also found Boston has a great local music scene.

Though I disagree with how the laws have been used so far in this campaign, I can and do vote with my wallet, and I think thousands are doing likewise.

Thanks so much to everyone for the support!

Cheers,

Joel

Earlier today, we filed this Motion for a New Trial and Remittitur to Judge Gertner, the same judge who presided over the original trial. (BTW, remittitur is fancy legal talk meaning a ruling by a judge lowering the amount of damages granted by a jury — usually,  because the amount awarded exceedes the amount demanded.) What we filed highlights errors we believe were made during the trial and in Judge Gertner’s subsequent opinion denying Joel’s fair use defense (the opinion is here), along with our argument that the crippling award of $675,000 can not stand because it is unconstitutionally high. The music industry will have a chance to respond, and then Judge Gertner will rule on these issues sometime in the next few months.

This post is an attempt to explain the basics of our motion in less legal jargon.

• The first error we think Judge Gertner made was identifying the introduction of the iTunes Music Store in 2003 as the end of a time period when Joel could have had a fair use claim. We were happy to see that Judge Gertner’s opinion accepted our argument that the recording companies’ unwillingness to offer music consumers an authorized online source comparable in utility to what was available to them on Napster put music consumers in an unfair position. Somewhat perversely, however, Judge Gertner did not allow Joel to make this argument, since she believed that the music industry tipped the scales back in its favor when Apple began selling individual downloads for $.99 each.

We explain in our motion that this conclusion lets the industry off way too easily and incorrectly denied Joel a chance to make a fair use claim. For years after the limited introduction of the iTunes store -– remember? it initially launched with just 200,000 songs and was only for Mac -– the industry’s insistence that music be sold encumbered with DRM made the songs sold on iTunes much less useful than those that could be found on filesharing networks.  Who wanted songs tied to a particular computer and a particular mp3 player when CDs themselves were playable and rip-able without restrictions?

It was only after Steve Jobs posted his famous open letter explaining all the problems with DRM and begging the industry to abandon their failed experiement that the industry gave consumers like Joel a genuine alternative to file sharing networks. Judge Gertner thus should have placed the end of what she calls the “interregnum” sometime after the end of the DRM-era, and not in 2003 as she did. Since Joel was caught sharing in 2004, we contend, once the proper time frame is identified, he should have been given a chance to present this defense.

• Even if Judge Gertner refuses to revisit her position on fair use, we nonetheless believe that the damages must be reduced substantially under the Due Process clause of the Constitution. Our argument on this point comes directly from a nearly hundred-year old Supreme Court case that said that damages awarded according to a specific statute (as in this case, since the Copyright Act specified a range of damages) are invalid if they are “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” The Supreme Court has more recently extended that logic to cases where very large damage awards have been levied against corporate defendants, but we don’t even need to rely directly on those cases. After all, if it’s not “obviously unreasonable” to bankrupt a PhD student for sharing a few songs on Kazaa without the record industry even alleging any direct harm that came from his file sharing, then what is? Judge Gertner’s consideration of this issue has been explicitly postponed until now, and we are optimistic that she will recognize just how unfair it would be to force Joel to pay $650,000 to the record industry for sharing 30 songs.

We also make a few other arguments that are more technical in nature having to do with the redaction of a letter Joel sent to the record companies offering to settle several years ago and with the proper balance of power between the judge and jury in copyright cases. However, we wanted to articulate the primary arguments on this blog because they should clear as day to even non-lawyers. After all, who doesn’t remember just how inferior music encumbered by clumsy DRM protection was before the record industry finally caught on? Likewise, who could possibly think that a massive and entirely arbitrary verdict of $675,000 for sharing songs valued at (at most) $30 comports with any of our traditional notions of fairness and Due Process?

Thanks for your support. You can keep up-to-date on the progress of the case on this blog and via our twitter feed, @joelfightsback.

Confused? Here’s the gist:

1) The judgment from July 31st was formally entered.  This had to occur before we could move on to the appeals process.  We do plan to ask the judge to adjust the amount and file a motion for a new trial.
2) Regarding a request that the court prohibit Joel from “promoting” illegal downloading, Judge Gertner stated that Joel has the right to free speech under the First Amendment and that the court has neither the “intent nor the authority” to police what Joel says.

3) Judge Gertner defended her dismissal of our fair use defense, but added that a fair use defense which emphasized more mitigating factors like the music purchased over the time period in question could be a viable defense to try.

4) Judge Gertner again implored Congress to change the copyright laws that are routinely threatening “teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood.”

Good summaries are available at ComputerWorld, Wired, and — our team’s favorite critic: Ben Sheffner’s blog.

As always, thanks for following us.  Tweet (#JFB) or comment below to join in the discussion!

Here’s one email we received this morning:

For all the reading I’ve done on the internet, I can’t help but notice there are a few very important points that are being missed to the average reader. I feel the most important of these is what I’ve dubbed my bottom line theory on the whole case. The bottom line is that people across North America are being sued for listening to sounds, however the RIAA or any organization would like to word it. The reason lawyers actually have work on a day to day basis is they are good at showing certain angles and getting a point across, the RIAA lawyers and the original copyright documentation have won cases under false pretenses. They CAN NOT copyright a sound or even multiple sounds, the jingles that company’s use (hum the mc’donalds bada bop ba ba so were on the same page) has been copyrighted for use in advertising. Under no circumstances would you see someone arrested and charged for humming that tune, the American public wouldn’t allow it.

The reason I believe the American public wouldn’t allow it is because a team of well-spoken lawyers hasn’t had the chance to stand in front of a judge with it, however in time someone will run into this problem and it saddens me to admit the copyright owners will probably win. That said if common sense and basic human rights don’t totally die out in the near future people may realize that yourself and others are being sued for listening to sounds. I’ve tried to disprove my theory a thousand times and I seem for some reason to keep coming back to the very basic and easy to understand concept that, as much as you can copyright sounds PRINTED on media such as a CD or DVD, you should never be able to copyright the sound itself. Since public internet sharing is only available on computers, does that mean we will soon see court cases against Internet Explorer and Safari for providing the tools to pirate?

If we entertain the idea that the supply and demand sides can be blamed for piracy, then here’s a list of people who are next on the RIAA guillotine:

• The downloader of the file and anyone who used it on that persons computer.
• The internet provider for allowing this person onto illegal file sharing networks.
• ALL of the manufacturers who have parts in said persons computer or the internet providers servers for providing a tool with which to steal.
• The software creators of the operating system, the browser, the P2P client, music player, hell even the software used to create the website in the first place.
• The electricity company for giving the “thief” the electricity required to operate the computer they use for these “stolen sounds”.
• As well anyone who didn’t cover their ears while the pirated music was playing is an accessory to theft.

Should we start charging shoplifters with piracy as well if they steal a music cd? Better yet, if someone rip’s a copyrighted CD to their computer that they purchased, and they by chance have an internet connection should they be charged with “intent to distribute a controlled… sound?” I can’t even begin to imagine the case the RIAA has been compiling against all of the old school thieves who used to record to a cassette from the radio.

In closing I guess I’d like to point out if you read all of the points I’ve made you’ll come back to the bottom line that charging anyone who has any part in the electronic transfer of sound, from internet provider to fifteen year old listener, is absolutely ridiculous. No one in the court room at the appeal will be able to prove you didn’t record those songs onto your computer from the radio, which last time I checked still isn’t an offense. I’m personally going to use that ancient method in today’s modern world and copy songs to my computer from internet radio stations, have fun  charging me $22,500 a song for that RIAA.

….I wish you the best in fighting the RIAA’s lawyers misinterpreted b*llshit with the truth, hopefully the jury’s intelligent enough to realize the difference.

Warm Regards.

Adam Ockey

In light of comments made and the potential for confusion, JFB would like to clarify its stance on what we post.

We hope that joelfightsback.com will become an active medium for discussion about the music industry, copyright law, as well as Joel’s case.  We believe that letting that discussion happen, even when people disagree, will benefit everyone.  You’ll note that though the RIAA has its own blog, they never allow comments on their posts while we encourage hearty debate (reserving the right to remove libelous materials).

From time to time, people write in interesting op-eds and articles to our e-mail, and we’re delighted to post them.  As such, JFB does not necessarily endorse any of these posted pieces written by individuals outside our team anymore than we would necessarily endorse comments left about them.  We post them because we think they’re interesting and could be worth discussing.

By Professor Thomas J. Impelluso, Ph.D.
Department of Mechanical Engineering
College of Engineering
San Diego State University

In just under three years, the Recording Industry Association of America (RIAA) sued over 20,000 music fans for file sharing.  Recently, they commenced an aggressive new litigation campaign to protect their interests further.  But this begs the question: What, exactly, are they protecting?

As I belt out my rendition of Puccini’s “Un bel di vedremo” in the seclusion of my shower (my wife would be the first to confirm how uttertly fantastic the sound truly is), I wonder how my voice would sound if it were recorded with today’s technology.

Recording software can can split a sound’s frequencies into harmonics, elevate a pitch, add or remove accompaniment and dilate or contract the phrasing.  With sufficient computational power, a recording of my own melodically challenged voice could sound as magnificent as I’d like to think it is.

However, long before recording technology became pervasive, people would pay to attend live performances.  There, artists would break the infinite barrier between unity and plurality; they could communicate with the single patron and the entire audience at the same moment, and each person could hear the shared spirit of humanity.  This ability couldenable the audience to feel whole.  And audiences paid for tickets to experience such moments.  For this is how the artist made a living - through real performances; and with their talent.

Today, recordings are digitally altered and the final product has a bare association with the person who claims to have created it.  The RIAA claims they are defending these performing artists.  But contemporary society no longer has Performing Artists (singers); we have Recording Artists who provide Frequency-Altered Recorded Talent (FARTs).  The voice and accompaniment have been compressed, transformed and squeezed through a computational sphincter — a USB port. And the same computational technology that enables recording engineers to ‘clean up and enhance a song, also enables us, the public, to share, via the internet, such performance data — oops! sorry, I mean - music.

The very tools that the RIAA uses to commercialize art enables file sharing.  How ironic.  And now that RIAA is finally succeeding in shutting down traditional file sharing to protect the sound of their FARTS, new modes are emerging in which segments of a recording can be shared.  The RIAA may win each battle, but they will lose the war; for each mode of sharing they stop, new modes will arise and we should ask why these movements pass so naturally.  I believe the answer is that in this era of optimized digital manipulation, all FARTs sound alike. Have we become so obsessed with the term ‘copyright’ that we no longer know whether what we are copyrighting deserves such distinction?

Someone should interlace the sounds of the gastrointestinal plumbing and the screaming on American Idol and then electronically adjust the recording until a wall of sound emerges.  Next, subject it to audience surveys to ascertain if it satisfies the common taste and run it through the software again, enhancing it, when necessary, with a sufficient sampling of say, “Un bel di vedremo” for the modicum of melody needed to escape the prison of the oppressive rhythm that propels most contemporary music.  Repeat this process until a four bar jingle emerges. Then slap a copyright on it and sell, sell, sell.  The RIAA would be ready to sue all who violate the copyright or who dare to copy and then pass on the FART.  For at some point two FARTs will sound alike and the RIAA will then have to explain what, exactly, they are trying to protect in each individual FART.

Artists can successfully sell tickets to live performances, yet the RIAA consistently fails to protect digital recordings.  There is a natural reason for their failure to stop music downloading.  It should be obvious where the art flourishes — and THAT kind of art is not in need of protecting. For there is no art in a FART.  The RIAA should stop abusing the time of our courts in their senseless battle to defend a misapplied definition of art in a hyper-capitalist society that attempts to own and profit from mediocre expressions and passings.

• Part one
• Part two
• Part three
• Part four