(This post was authored by FMC communications intern Caroline Fox)
On Monday, May 21, the Supreme Court of the United States declined to hear an appeal on one of the longest-running file-sharing cases in the recorded music industry. While their refusal to hear the case is not shocking, it does present an opportunity to examine the record industry’s historic response to unauthorized distribution, and the effectiveness of certain punitive responses.
In 2003, Joel Tenenbaum, a former Boston University Ph.D. student, received a letter from the Recording Industry Association of America (RIAA) demanding $3,500 for 31 songs he downloaded and shared over the unlicensed file sharing service Kazaa. The RIAA had sent similar letters to approximately 30,000 other people, most of whom settled. Tenenbaum, not wishing to settle, offered RIAA a partial payment of $500, which they rejected.
In 2007, the RIAA filed a formal complaint accusing Tenenbaum of copyright infringement for each of the 31 songs. The complaint gave Tenenbaum 2 choices: appear in court or pay up. Tenenbaum chose to appear in court, and offered to settle for $5,000. The RIAA denied the settlement, and came back with a counter offer of $10,500 to be paid over a one year term. Tenenbaum refused.
The case went to trial in 2009, and renowned internet law professor Charles Nesson took on the case pro bono, saying that he saw representing Tenenbaum as an opportunity to take on the record industry’s “assault on what I think of as the digital-native generation.” Filesharing advocates breathlessly discussed the high-profile case; at the time, the New York Times quoted a Techdirt commentor calling Professor Nesson “my new HERO” and expected the industry to “go down in a blaze of humiliation!”
But that’s not what happened. Tenenbaum and Nesson encountered difficulties with their unorthodox defense plan as the court rejected their abuse of process claim, excluded expert witnesseses, and rejected all potential jurors who used social media to obtain music. The court also rejected Nesson’s controversial attempt to present a fair use defense. He planned to argue that in addition to the four fair use factors laid out in the statute, (17 U.S.C.§ 107) a jury should consider “additional factors grounded in the concept of fairness.” The fair use doctrine is commonly cited when small portions of a copyrighted work have been published elsewhere. Here, however, Nesson wanted to apply the fair use defense to entire songs — a novel interpretation that was rejected outright.
Because Tenenbaum ultimately admitted to downloading the 32 songs at issue, the jury only had to decide the appropriate penalty. The minimum amount they could award stood at $22,500. The maximum figure loomed at $4.5 million. On July 31, 2009, the jury announced their decision and awarded $675,000 against Tenenbaum.
On appeal, Tenenbaum argued that the jury award was unconstitutionally large. The federal judge who oversaw the trial had already cut the penalty down to around $67,000, agreeing with this argument. The appeals court, however, did not see it this way, and said that the judge had no business interfering with the jury’s decision. They reinstated the original figure and slapped the $675,000 price tag back onto the 31-song violation. Tenenbaum appealed again, this time to the Supreme Court of the United States. On Monday, however, the Supreme Court declined to hear the appeal. “The rejection was expected and not very illuminating substantively,” Nesson said.
So what does this mean? As of right now, not too much. The case is still ongoing, as Tenenbaum is still fighting the monetary amount awarded to the RIAA, and will continue to work his way through the court system. Unless he settles, which seems unlikely, Tenenbaum could eventually make it back to the Supreme Court, who may or may not decide to hear it.
Let’s be clear: while we agree with the RIAA that unauthorized music distribution is bad because it deprives artists of compensation for their creative work, we can’t help but feel that this approach did not have its intended effect — to curb unauthorized distribution. Pressing such massive statutory damages upon a single individual infringer is essentially wasteful, and does nothing to build trust between producers and consumers of music. Even the middle figure for statutory damages — which is what the jury demanded from Tenenbaum — is a huge figure that would bankrupt most people. The same figure is far less impacting to a major record label. Still, neither party gains anything substantial out of these kinds of individual suits that drain the court system’s time and energy, while rewarding only the lawyers.
These days, it seems the RIAA is beginning to agree with us. After a considerable public backlash, the industry has generally halted its efforts to go after individuals by slamming them with high statutory damages. Tenenbaum’s suit is one of the last remnants of the RIAA’s anti-downloading litigation campaign, in which they used their massive legal teams to target individual rogue file sharers. Most of these cases have been settled. Currently, the RIAA focuses on large file sharing groups and websites, attempting to take down hubs of illegal distribution rather than singular users (like the recent MegaUpload takedown).
Nesson, however, has held fast to the tone of goofy, self-congratulatory hyperbole characteristic of so many file-sharing advocates. Comparing RIAA vs Tenenbaum to the water-contamination case that inspired the book and movie A Civil Action, he hopes that the ensuing discussion will create change in the “court of public opinion,” and will, in turn, create change in the judicial system. As for Tenenbaum, he has expressed gratitude and satisfaction over the way Nesson handled the case, even if it was unconventional and thus far unsuccessful. As for music, he says that these days he only rocks out to music he downloads legally from iTunes.
[Photo: ”gavel“ by safari_vaction via Flickr, Creative Commons Attribution]