Analysis: Could a music downloader change US copyright law?

NEW YORK (Reuters) – In an age of iTunes and an app for everything, Joel Tenenbaum’s battle with the music industry against illegal downloading seems as relevant as an eight-track tape.

But it turns out that the fight could produce something surprisingly lasting: a change in copyright law.

In 2007, Tenenbaum was one of 35,000 people sued by the Recording Industry Association of America in a legal assault aimed at discouraging music lovers from illegally downloading songs. While the vast majority of dishonest downloaders settled their cases, only Tenenbaum and one other defendant stood up for a lawsuit.

During the litigation, Tenenbaum’s testimony earned him some notoriety – he blamed the download on burglars, a foster child, and his sisters before finally confessing – but the digital rights community continued to support his case. A friend of the court’s brief supporting Tenenbaum’s constitutional arguments was co-authored by members of the Electronic Frontier Foundation, a lobby group, as well as clinics at Stanford and Berkeley law schools on the technology and public policies. Harvard law professor Charles Nesson, founder of the school’s Berkman Center for Internet & Society, has taken on Tenenbaum as a client and has been representing him on a pro bono basis since 2008.

Now, as the Tenenbaum case enters its next phase, these advocates see yet another opportunity to lobby for a response on how copyright laws should be enforced.

“The system is outdated,” said Jason Schultz, assistant professor of clinical law at Berkeley and co-director of the Samuelson Law, Technology & Public Policy Clinic. While Tenenbaum is a flawed – and unsympathetic – defendant he is a vehicle for updating copyright law. “He’s a real case and a real guy who was raced for money,” Schultz said. A court will ultimately make a decision on the issue of appropriate copyright damages, he said. “We are trying to help them do the right thing. “

$ 22,500 PER SONG

The stage was set two weeks ago when the First Circuit Court of Appeals restored a judgment of $ 675,000 against Tenenbaum, or $ 22,500 for each of the 30 charges of illegal downloading – a reversal of a decision by one. trial judge to reduce the price to $ 67,500. The decision was a blow to Tenenbaum, who had argued that the Copyright Act was not meant to be applied to consumers’ copying and that the recording industry was not harmed. He argued that such a large sum for an individual was unconstitutional and unfair.

“I can’t afford the $ 67,000 it used to cost. I’m sure I can’t afford the bigger amount, ”Tenenbaum, who is now studying physics as a graduate student at Boston University, told Reuters. He said he would declare bankruptcy if the judgment was upheld.

The Copyright Act, last revised in 1976, allows plaintiffs to take two approaches to damages. They can either ask for the quantifiable amount of the damage caused or ask for legal damages. Today offenders can be forced to pay between $ 750 and $ 150,000 per offense.

The Recording Industry Association of America, and its members such as Warner Bros. Records and Sony Music Entertainment, argue that the current law is fair, provides flexibility for jurors, and provides an appropriate deterrent for potential violators.


From the perspective of digital rights advocates, however, the law is totally out of step with contemporary technology, where almost any device allows users to make and download copies of almost anything.

In the Tenenbaum case, Schultz and others pushing for electronic rights changes, hoped the First Circuit would rule on whether or not the legal compensation of $ 22,500 per violation was unconstitutional. Courts should “ensure that damages have a reasonable connection to the actual harm” and provide advice on how statutory damages will be assessed so that creators can “adequately navigate the waters of the world. copyright law, ”argued the Electronic Frontier Foundation in its friend in court. brief.

The First Circuit, however, has not commented on this issue. He sent the case back to the lower court, not on the merits of the due process decision, but because he believed the lower court had taken precedence over the constitutional issue. The first circuit, however, went through the talking points of reducing statutory damages versus limiting punitive damages.


One potential outcome in the Tenenbaum case is that a court will decide to rely on the punitive damages style assessment model, giving judges more leeway to reduce statutory damages in criminal cases. copyright. Unlike a common law award reduction, the plaintiff would not have the immediate right to demand a new lawsuit for damages. It would be a “significant change in the process,” said John Chatowski, legal counsel at Nixon Peabody, who specializes in intellectual property litigation.

The issue could also be addressed by the case of the other remaining individual downloader, Jammie Thomas-Rasset. This case is pending before the Eighth Circuit. To date, a jury has twice delivered verdicts of over $ 1 million against Thomas-Rasset; the judge reduced the damages to $ 54,000 and the RIAA is appealing. Like the Tenenbaum case, the Thomas-Rasset case focuses on the fairness of these types of awards and could beat Tenenbaum’s to a decision.

Tenenbaum’s options now are to appeal the decision of the First Circuit panel to the First Full Circuit, to the Supreme Court, or to wait and see what happens when the case goes to the lower court. Tenenbaum’s attorney, Charles Nesson declined to comment for this story.

by Erin Geiger Smith; Editing by Eileen Daspin and Tim Dobbyn

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