Ben Sisario, New York Times; Supreme Court Passes on File-Sharing Case, but Still No End Is in Sight:
"The Supreme Court has declined to hear an appeal in one of the record industry’s longest-running cases over unauthorized file-sharing.
The court effectively let stand a jury’s $675,000 damages award against Joel Tenenbaum, a former Boston University student who admitted to downloading some 30 songs on the unlicensed file-sharing service Kazaa."
Showing posts with label Judge Nancy Gertner. Show all posts
Showing posts with label Judge Nancy Gertner. Show all posts
Tuesday, May 22, 2012
Friday, November 12, 2010
Joel Tenenbaum: a year on from being sued for $4.5m; (London) Guardian, 11/9/10
Joel Tenenbaum, (London) Guardian; Joel Tenenbaum: a year on from being sued for $4.5m: Last month, the RIAA shut down the peer-to-peer site Limewire. I was sued by the same organisation for sharing 30 songs online – 12 months on, my battle with them continues:
http://www.guardian.co.uk/music/musicblog/2010/nov/09/joel-tenenbaum-a-year-on
http://www.guardian.co.uk/music/musicblog/2010/nov/09/joel-tenenbaum-a-year-on
Monday, July 19, 2010
A copyright ruling no one can like; CNetNews.com, 7/13/10
Greg Sandoval, CNetNews.com; A copyright ruling no one can like:
"Legal experts sympathetic to copyright owners as well as those known for supporting technology companies are criticizing a federal judge's decision to lower a jury award in a high-profile lawsuit about file sharing.
A year ago, a jury found college student Joel Tenenbaum liable for willful copyright infringement for sharing 30 songs, and later set a damages award of $675,000. On Friday, U.S. District Judge Nancy Gertner dramatically reduced the award to $67,500.
Gertner wrote in her decision that the original amount was too high and "unconstitutional." With regard to statutory damages in a copyright case, her decision is believed by some legal experts to be unprecedented. Not only are copyright owners attacking Gertner's reasoning, but so are some well-known lawyers from the pro-technology side.
Eric Goldman, a law professor at Santa Clara University who is often critical of entertainment companies in copyright litigation, predicted much of Gertner's ruling is vulnerable to appeal, which the RIAA will likely do, a high placed music industry source told CNET on Tuesday.
"This ruling is critically important," Goldman wrote on his blog on Monday. "It has the potential to [affect statutory damages for every copyright case that involves them]." Goldman said that despite feeling sympathy with the judge's aversion to the size of the award, brought on by what he called a "bad brew of an aggressive copyright lobby and pliable politicians," her arguments "did not completely convince me."
Statutory damages are a dollar range determined by Congress that sets limits on what juries can assess for copyright infringement. For willful infringement, a jury can assess damages as high as $150,000 per incident. Gertner's ruling is more proof that the damage amounts lawmakers have enabled the music industry to claim for copyright infringement are too high are the courts--as well as much of the public--to stomach. In major file-sharing cases, the Recording Industry Association of America, the trade group representing the four largest record companies, is 0-for-2 in seeing jury awards held up by the courts.
Last year, Jammie Thomas-Rasset, the accused music-pirating Minnesota woman, saw U.S. District Judge Michael Davis slash the jury-awarded damages from $1.9 million to $54,000.
"The damages range within the law are an important signal about the potential penalties for illegal conduct," the RIAA said in a statement. "A jury decides, after hearing all the facts, what is the appropriate penalty. If a judge can disregard those facts and simply impose his or her own personal views, that undermines an important deterrent message established by Congress."
Judge's authorityIn her ruling, Gertner gave consideration to the fact that there's no proof Tenenbaum shared music for commercial gain. But by reducing the award, Gertner overruled the jury as well as Congress.
"I don't think the law gives the judge the authority to lower the jury's award," said Ben Sheffner, an entertainment attorney and frequent blogger on copyright issues. "I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."
Not everybody sees it that way. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, an advocate group for tech and Internet users, on applauded Gertner decision.
"Gertner found there is quite a bit of evidence that Congress did not intend statutory provisions to be applied this way," McSherry said. "She concluded that the [original] damages award went far beyond what Congress intended or contemplated."
Gertner's decision will trigger all kinds of other problems, Goldman predicted.
"I expect more litigation battles over statutory damages," Goldman said. "Almost every copyright infringement defendant can advance a non-frivolous argument that statutory damages in their case would be unconstitutional. As a result, statutory damages cases will take more time and money."
Hurting 'Hurt Locker' For the music industry, this may not mean much. The top labels gave up on filing copyright complaints against individual file sharers in December 2008. Gertner's decision, however, could come into play for Voltage Pictures, producers of the Oscar-winning film "The Hurt Locker."
D.C.-area law firm Dunlap, Grubb, & Weaver has begun filing lawsuits against individual file sharers on behalf of independent production companies. Voltage is among about a dozen filmmakers that have signed up with Dunlap, which is reportedly intending to sue a total of 50,000 people for allegedly illegally sharing movie files.
In letters, Dunlap notifies the accused that they can settle the case quickly by paying $1,500 but that if they refuse, the company could eventually ask for $150,000 if they can prove the person is liable for willful infringement. That kind of claim coming after award reductions in both the Thomas-Rasset and Tenenbaum cases could ring hollow.
Gertner's decision will also make settling copyright much harder, Goldman said.
"Defendants will have increased confidence in their low case valuations (given the possibility that statutory damages will be Constitutionally capped at $2,250/work)," Goldman wrote, adding that "most copyright owners will not accept this discount. As a result, due to the doctrinal uncertainty, the litigants will have an even harder time reaching a compromise."
http://news.cnet.com/8301-31001_3-20010428-261.html
"Legal experts sympathetic to copyright owners as well as those known for supporting technology companies are criticizing a federal judge's decision to lower a jury award in a high-profile lawsuit about file sharing.
A year ago, a jury found college student Joel Tenenbaum liable for willful copyright infringement for sharing 30 songs, and later set a damages award of $675,000. On Friday, U.S. District Judge Nancy Gertner dramatically reduced the award to $67,500.
Gertner wrote in her decision that the original amount was too high and "unconstitutional." With regard to statutory damages in a copyright case, her decision is believed by some legal experts to be unprecedented. Not only are copyright owners attacking Gertner's reasoning, but so are some well-known lawyers from the pro-technology side.
Eric Goldman, a law professor at Santa Clara University who is often critical of entertainment companies in copyright litigation, predicted much of Gertner's ruling is vulnerable to appeal, which the RIAA will likely do, a high placed music industry source told CNET on Tuesday.
"This ruling is critically important," Goldman wrote on his blog on Monday. "It has the potential to [affect statutory damages for every copyright case that involves them]." Goldman said that despite feeling sympathy with the judge's aversion to the size of the award, brought on by what he called a "bad brew of an aggressive copyright lobby and pliable politicians," her arguments "did not completely convince me."
Statutory damages are a dollar range determined by Congress that sets limits on what juries can assess for copyright infringement. For willful infringement, a jury can assess damages as high as $150,000 per incident. Gertner's ruling is more proof that the damage amounts lawmakers have enabled the music industry to claim for copyright infringement are too high are the courts--as well as much of the public--to stomach. In major file-sharing cases, the Recording Industry Association of America, the trade group representing the four largest record companies, is 0-for-2 in seeing jury awards held up by the courts.
Last year, Jammie Thomas-Rasset, the accused music-pirating Minnesota woman, saw U.S. District Judge Michael Davis slash the jury-awarded damages from $1.9 million to $54,000.
"The damages range within the law are an important signal about the potential penalties for illegal conduct," the RIAA said in a statement. "A jury decides, after hearing all the facts, what is the appropriate penalty. If a judge can disregard those facts and simply impose his or her own personal views, that undermines an important deterrent message established by Congress."
Judge's authorityIn her ruling, Gertner gave consideration to the fact that there's no proof Tenenbaum shared music for commercial gain. But by reducing the award, Gertner overruled the jury as well as Congress.
"I don't think the law gives the judge the authority to lower the jury's award," said Ben Sheffner, an entertainment attorney and frequent blogger on copyright issues. "I don't think she should have altered it. I don't mean to say that I'm entirely comfortable with the amount as a matter of policy...but her decision seriously undermines the authority of Congress to set the range of statutory damages."
Not everybody sees it that way. Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, an advocate group for tech and Internet users, on applauded Gertner decision.
"Gertner found there is quite a bit of evidence that Congress did not intend statutory provisions to be applied this way," McSherry said. "She concluded that the [original] damages award went far beyond what Congress intended or contemplated."
Gertner's decision will trigger all kinds of other problems, Goldman predicted.
"I expect more litigation battles over statutory damages," Goldman said. "Almost every copyright infringement defendant can advance a non-frivolous argument that statutory damages in their case would be unconstitutional. As a result, statutory damages cases will take more time and money."
Hurting 'Hurt Locker' For the music industry, this may not mean much. The top labels gave up on filing copyright complaints against individual file sharers in December 2008. Gertner's decision, however, could come into play for Voltage Pictures, producers of the Oscar-winning film "The Hurt Locker."
D.C.-area law firm Dunlap, Grubb, & Weaver has begun filing lawsuits against individual file sharers on behalf of independent production companies. Voltage is among about a dozen filmmakers that have signed up with Dunlap, which is reportedly intending to sue a total of 50,000 people for allegedly illegally sharing movie files.
In letters, Dunlap notifies the accused that they can settle the case quickly by paying $1,500 but that if they refuse, the company could eventually ask for $150,000 if they can prove the person is liable for willful infringement. That kind of claim coming after award reductions in both the Thomas-Rasset and Tenenbaum cases could ring hollow.
Gertner's decision will also make settling copyright much harder, Goldman said.
"Defendants will have increased confidence in their low case valuations (given the possibility that statutory damages will be Constitutionally capped at $2,250/work)," Goldman wrote, adding that "most copyright owners will not accept this discount. As a result, due to the doctrinal uncertainty, the litigants will have an even harder time reaching a compromise."
http://news.cnet.com/8301-31001_3-20010428-261.html
Friday, July 9, 2010
Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'; TechDirt.com, 7/9/10
Mike Masnick, TechDirt.com; Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive':
"It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn't have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas' case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be "bad" cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.
As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be "unconstitutionally excessive" and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that's still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.
This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive... but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it's setting up a potentially very important legal battle about the statutory damages associated with copyright.
The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn't appear to be any evidence at all that it's working. Instead, such high damages have actually done the opposite. They've convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn't lead to a fine of tens of thousands of dollars. It's so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry's focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings -- which the industry will fight tooth and nail -- might actually be a blessing in disguise for the industry. If the actual damages weren't so ridiculous, people probably wouldn't be so up in arms over copyright issues."
http://www.techdirt.com/articles/20100709/11305410154.shtml
"It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn't have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas' case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be "bad" cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.
As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be "unconstitutionally excessive" and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that's still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.
This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive... but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it's setting up a potentially very important legal battle about the statutory damages associated with copyright.
The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn't appear to be any evidence at all that it's working. Instead, such high damages have actually done the opposite. They've convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn't lead to a fine of tens of thousands of dollars. It's so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry's focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings -- which the industry will fight tooth and nail -- might actually be a blessing in disguise for the industry. If the actual damages weren't so ridiculous, people probably wouldn't be so up in arms over copyright issues."
http://www.techdirt.com/articles/20100709/11305410154.shtml
Sunday, December 13, 2009
‘Missed Opportunity’ In File Sharing Case? Don’t Believe It; Wired, 12/8/09
David Kravets, Wired; ‘Missed Opportunity’ In File Sharing Case? Don’t Believe It:
"With the $675,000 judgment against Joel Tenenbaum now final, the inevitable finger pointing has begun.
Tenenbaum was only the second person in the nation to be sued by the RIAA for file sharing and to take the case all the way to jury trial, making it a closely watched case. It’s not surprising he lost, given that he admitted to sharing 30 songs on Kazaa and Limewire. But a few commentators have decided that Tenenbaum’s lawyer, Harvard’s Charles Nesson, is to blame for failing to offer the nuanced “fair use” defense invited by the judge...
What’s gone ignored, though, is that the defense invited by commentators and Judge Gertner wouldn’t have helped Nesson’s client in the least. Virtually none of the scenarios laid out in the ruling applied to 25-year-old Joel Tenenbaum, a classic copyright scofflaw who was neither space-shifting nor downloading music otherwise unavailable online.
“For the most part, he was downloading them and sharing them like the rest of the kids — and not particularly for sampling,” Nesson said in a telephone interview. “That is the bottom line.”...
Nesson’s performance wasn’t as stellar as it was in 1971, when he successfully defended Daniel Ellsberg in the Pentagon Papers case. Judge Gertner took the time to upbraid Nesson for his behavior.
“Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web,” Gertner wrote, adding that Nesson and his defense team of Harvard students mounted a “chaotic” defense.
But if he’d lied about the facts — making Ars Technica and the L.A. Times happy — his client would be no better off.
The other defendant to go against the RIAA before a jury is Jammie Thomas-Rasset. A Minnesota jury dinged her $1.92 million for 24 songs this summer after jurors concluded she lied on the stand, testifying that perhaps others, including her children, were the actual copyright scofflaws.
Copyright reform advocates are perennially frustrated that their perfectly reasonable ideas of what qualifies as “fair use” online don’t get a chance to be heard in court. That’s no coincidence — the RIAA isn’t going to take a case to trial if it might produce a pro-consumer ruling. But the armchair barristers blaming Nesson for failing to carry their reform message to the Tenenbaum court are misguided.
Regardless of whether the Copyright Act is flawed, or Nesson was out to lunch, the simple fact is the RIAA had Tenenbaum dead to rights."
http://www.wired.com/threatlevel/2009/12/nesson-2/#more-11854
"With the $675,000 judgment against Joel Tenenbaum now final, the inevitable finger pointing has begun.
Tenenbaum was only the second person in the nation to be sued by the RIAA for file sharing and to take the case all the way to jury trial, making it a closely watched case. It’s not surprising he lost, given that he admitted to sharing 30 songs on Kazaa and Limewire. But a few commentators have decided that Tenenbaum’s lawyer, Harvard’s Charles Nesson, is to blame for failing to offer the nuanced “fair use” defense invited by the judge...
What’s gone ignored, though, is that the defense invited by commentators and Judge Gertner wouldn’t have helped Nesson’s client in the least. Virtually none of the scenarios laid out in the ruling applied to 25-year-old Joel Tenenbaum, a classic copyright scofflaw who was neither space-shifting nor downloading music otherwise unavailable online.
“For the most part, he was downloading them and sharing them like the rest of the kids — and not particularly for sampling,” Nesson said in a telephone interview. “That is the bottom line.”...
Nesson’s performance wasn’t as stellar as it was in 1971, when he successfully defended Daniel Ellsberg in the Pentagon Papers case. Judge Gertner took the time to upbraid Nesson for his behavior.
“Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web,” Gertner wrote, adding that Nesson and his defense team of Harvard students mounted a “chaotic” defense.
But if he’d lied about the facts — making Ars Technica and the L.A. Times happy — his client would be no better off.
The other defendant to go against the RIAA before a jury is Jammie Thomas-Rasset. A Minnesota jury dinged her $1.92 million for 24 songs this summer after jurors concluded she lied on the stand, testifying that perhaps others, including her children, were the actual copyright scofflaws.
Copyright reform advocates are perennially frustrated that their perfectly reasonable ideas of what qualifies as “fair use” online don’t get a chance to be heard in court. That’s no coincidence — the RIAA isn’t going to take a case to trial if it might produce a pro-consumer ruling. But the armchair barristers blaming Nesson for failing to carry their reform message to the Tenenbaum court are misguided.
Regardless of whether the Copyright Act is flawed, or Nesson was out to lunch, the simple fact is the RIAA had Tenenbaum dead to rights."
http://www.wired.com/threatlevel/2009/12/nesson-2/#more-11854
Tuesday, December 8, 2009
[OpEd] An opportunity missed to apply 'fair use' to file sharing; LA Times, 12/7/09
[OpEd] LA Times; An opportunity missed to apply 'fair use' to file sharing:
"Joel Tenenbaum set out to become the standard-bearer for people who fight back against Recording Industry Assn. of America lawsuits, but he has come to symbolize fighting back the wrong way. After he admitted on the stand to downloading and sharing 30 songs -- contrary to what he'd claimed in a deposition -- a federal jury found the Boston University graduate liable in August for copyright infringement and ordered him to pay the labels $675,000. Today, the U.S. District Court judge who presided over the case, Nancy Gertner, issued a formal ruling explaining why she had rejected Tenenbaum's "fair use" defense. In a crisp indictment of Tenenbaum's legal team (which was led by notable copyright expert Charles Nesson from Harvard Law School), Gertner said she was prepared to consider a more expansive fair-use defense than other courts had entertained, but the defense blew it."
http://opinion.latimes.com/opinionla/2009/12/an-opportunity-missed-to-apply-fair-use-to-file-sharing.html
"Joel Tenenbaum set out to become the standard-bearer for people who fight back against Recording Industry Assn. of America lawsuits, but he has come to symbolize fighting back the wrong way. After he admitted on the stand to downloading and sharing 30 songs -- contrary to what he'd claimed in a deposition -- a federal jury found the Boston University graduate liable in August for copyright infringement and ordered him to pay the labels $675,000. Today, the U.S. District Court judge who presided over the case, Nancy Gertner, issued a formal ruling explaining why she had rejected Tenenbaum's "fair use" defense. In a crisp indictment of Tenenbaum's legal team (which was led by notable copyright expert Charles Nesson from Harvard Law School), Gertner said she was prepared to consider a more expansive fair-use defense than other courts had entertained, but the defense blew it."
http://opinion.latimes.com/opinionla/2009/12/an-opportunity-missed-to-apply-fair-use-to-file-sharing.html
Monday, December 7, 2009
How Team Tenenbaum missed a chance to shape P2P fair use law; Ars Technica, 12/7/09
Nate Anderson, Ars Technica; How Team Tenenbaum missed a chance to shape P2P fair use law:
A federal judge has made it official: P2P file-swapper Joel Tenenbaum is on the hook for $675,000. The real tragedy here, though, is what might have been, as the judge admits she was receptive to all kinds of limited fair use claims and again slams the record industry's lawsuit campaign.
"Federal judge Nancy Gertner today officially brought down the tent on the Joel Tenenbaum P2P Big Top World 'O Fun, all but admitting that she would have given Tenenbaum's arguments about "fair use" a truly sympathetic hearing were it not for the shoddy behavior of his legal team. What could have turned into a watershed case instead became another statutory crucifixion, with Gertner finally entering the jury's $675,000 verdict against the young file-swapper whose defense crashed down with an in-court admission that he had been lying all along.
Gertner signed off the jury's damage amounts, which means that Sony BMG is entitled to $112,500, Warner Bros. gets $225,000, Arista Records gets $45,000, and Universal picks up $292,500.
The record labels wanted more, though; specifically, they asked for an injunction against Tenenbaum that would stop him from "promot[ing]… using the Internet or any online media distribution system to infringe copyrights."
According to Gertner, "the word 'promote' is far too vague to withstand scrutiny under the First Amendment. Although plaintiffs are entitled to statutory damages, they have no right to silence defendant's criticism of the statutory regime under which he is obligated to pay those damages. This Court has neither the desire nor the authority to serve as the censor of defendant's public remarks regarding online file-sharing."...
Also remember that Gertner throughout has been quite a public critic of the music industry's lawsuit campaign. She continues that criticism in the memo, saying, "The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenenbaum to make his best case for fair use."...
"Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file-sharing for private enjoyment." By striking so broadly at the idea of copyright, Tenenbaum took the matter out of Gertner's hands. "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court," she concluded.
In addition, she singled out Nesson for criticism in a footnote to the memo. "Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings to the Web." Examples of Nesson's bad behavior in the case "are legion."
And so we're left wondering what might have been. Tenenbaum can still contest the damage award, arguing that it was unconstitutionally excessive (papers on that claim are due in January), but "reducing a ridiculous damage award" is far less important than shoring up robust fair use rights."
http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars
A federal judge has made it official: P2P file-swapper Joel Tenenbaum is on the hook for $675,000. The real tragedy here, though, is what might have been, as the judge admits she was receptive to all kinds of limited fair use claims and again slams the record industry's lawsuit campaign.
"Federal judge Nancy Gertner today officially brought down the tent on the Joel Tenenbaum P2P Big Top World 'O Fun, all but admitting that she would have given Tenenbaum's arguments about "fair use" a truly sympathetic hearing were it not for the shoddy behavior of his legal team. What could have turned into a watershed case instead became another statutory crucifixion, with Gertner finally entering the jury's $675,000 verdict against the young file-swapper whose defense crashed down with an in-court admission that he had been lying all along.
Gertner signed off the jury's damage amounts, which means that Sony BMG is entitled to $112,500, Warner Bros. gets $225,000, Arista Records gets $45,000, and Universal picks up $292,500.
The record labels wanted more, though; specifically, they asked for an injunction against Tenenbaum that would stop him from "promot[ing]… using the Internet or any online media distribution system to infringe copyrights."
According to Gertner, "the word 'promote' is far too vague to withstand scrutiny under the First Amendment. Although plaintiffs are entitled to statutory damages, they have no right to silence defendant's criticism of the statutory regime under which he is obligated to pay those damages. This Court has neither the desire nor the authority to serve as the censor of defendant's public remarks regarding online file-sharing."...
Also remember that Gertner throughout has been quite a public critic of the music industry's lawsuit campaign. She continues that criticism in the memo, saying, "The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenenbaum to make his best case for fair use."...
"Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file-sharing for private enjoyment." By striking so broadly at the idea of copyright, Tenenbaum took the matter out of Gertner's hands. "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court," she concluded.
In addition, she singled out Nesson for criticism in a footnote to the memo. "Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings to the Web." Examples of Nesson's bad behavior in the case "are legion."
And so we're left wondering what might have been. Tenenbaum can still contest the damage award, arguing that it was unconstitutionally excessive (papers on that claim are due in January), but "reducing a ridiculous damage award" is far less important than shoring up robust fair use rights."
http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars
Sunday, August 2, 2009
Oy Tenenbaum! RIAA wins $675,000, or $22,500 per song; Ars Technica, 7/31/09
Ben Sheffner via Ars Technica; Oy Tenenbaum! RIAA wins $675,000, or $22,500 per song:
After a brief deliberation, a federal jury has ruled that PhD student Joel Tenenbaum willfully infringed on the record labels' copyrights, awarding them $675,000 in damages, $22,500 for each of the 30 songs in question. Ars reports with reaction from Tenenbaum and his attorney, Harvard Law professor Charles Nesson.
"A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial.
The verdict came down at late Friday afternoon after a little more than three hours of deliberation."
http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars
After a brief deliberation, a federal jury has ruled that PhD student Joel Tenenbaum willfully infringed on the record labels' copyrights, awarding them $675,000 in damages, $22,500 for each of the 30 songs in question. Ars reports with reaction from Tenenbaum and his attorney, Harvard Law professor Charles Nesson.
"A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial.
The verdict came down at late Friday afternoon after a little more than three hours of deliberation."
http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars
Friday, July 31, 2009
Judge: Tenenbaum guilty of copyright infringement; Ars Technica, 7/30/09
Eric Bangemen via Ars Technica; Judge: Tenenbaum guilty of copyright infringement:
"In a reversal of her decision Thursday night, Judge Nancy Gertner has issued a directed verdict against P2P defendant Joel Tenenbaum, ruling that he is liable for infringing the record labels' copyrights on all 30 of the songs in question. It will be up to the jury to determine whether the infringement was willful and the size of the award—which could be as high as $4.5 million.
Judge Gertner's change of heart came after she had a chance to review the transcript of Thursday's testimony by Joel Tenenbaum. During direct examination, Tenenbaum was asked a simple question by the labels' counsel: "on the stand now, are you admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" His simple "yes" answer was enough to hand the labels a victory on the question of liability...
For all of the theatrics in the months leading up to the trial, things have gone down differently since the trial started Monday morning. Judge Gertner eviscerated Tenenbaum's Fair Use defense right before things got underway, and it has been all downhill from there for the defendant. Should the jury throw the book at Tenenbaum on the issue of damages, his counsel, Harvard Law professor Charles Nesson, will challenge the constitutionality of the damage provisions of the Copyright Act. But that's another chapter; this one is all but written."
http://arstechnica.com/tech-policy/news/2009/07/judge-tenenbaum-guilty-of-copyright-infringement.ars
"In a reversal of her decision Thursday night, Judge Nancy Gertner has issued a directed verdict against P2P defendant Joel Tenenbaum, ruling that he is liable for infringing the record labels' copyrights on all 30 of the songs in question. It will be up to the jury to determine whether the infringement was willful and the size of the award—which could be as high as $4.5 million.
Judge Gertner's change of heart came after she had a chance to review the transcript of Thursday's testimony by Joel Tenenbaum. During direct examination, Tenenbaum was asked a simple question by the labels' counsel: "on the stand now, are you admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" His simple "yes" answer was enough to hand the labels a victory on the question of liability...
For all of the theatrics in the months leading up to the trial, things have gone down differently since the trial started Monday morning. Judge Gertner eviscerated Tenenbaum's Fair Use defense right before things got underway, and it has been all downhill from there for the defendant. Should the jury throw the book at Tenenbaum on the issue of damages, his counsel, Harvard Law professor Charles Nesson, will challenge the constitutionality of the damage provisions of the Copyright Act. But that's another chapter; this one is all but written."
http://arstechnica.com/tech-policy/news/2009/07/judge-tenenbaum-guilty-of-copyright-infringement.ars
Monday, July 27, 2009
Judge rejects fair use defense as Tenenbaum P2P trial begins; Ars Technica, 7/27/09
Nate Anderson via Ars Technica; Judge rejects fair use defense as Tenenbaum P2P trial begins: Hours before the second P2P file-sharing trial in the US gets underway, the judge finally rules that defendant Joel Tenenbaum cannot claim "fair use" in the case. The proposed defense would be "so broad it would swallow the copyright protections that Congress has created," she wrote:
"There will be no fair use defense for Joel Tenenbaum at trial this week...
That won't happen, because Judge Gertner this morning granted the record labels' request for summary judgment on the issue of fair use. Noting that defendants only have the right to a jury trial when there are material facts in dispute, Gertner went on to point out that Tenenbaum has admitted to the activity in question and that she may therefore rule on the issue of fair use as a matter of law...
Gertner has been no fan of the labels' litigation campaign, telling industry lawyers in the past that they were "basically bankrupting people, and it's terribly critical that you stop it."
But that hasn't stopped her from taking on Team Tenenbaum's attempt to eviscerate copyright. As Nesson wrote in his pretrial outline of the case, "the idea of imposing law on the global ocean of free bits that has flooded into cyberspace is a gross and harmful over-extension of the power of the state and authority of the law." Gertner, whatever her own feelings on these kinds of cases, sees clearly that such claims amount to abolition of copyright in the digital age and are at odds with the law as currently written."
http://arstechnica.com/tech-policy/news/2009/07/judge-rejects-fair-use-defense-as-tenenbaum-p2p-trial-begins.ars
"There will be no fair use defense for Joel Tenenbaum at trial this week...
That won't happen, because Judge Gertner this morning granted the record labels' request for summary judgment on the issue of fair use. Noting that defendants only have the right to a jury trial when there are material facts in dispute, Gertner went on to point out that Tenenbaum has admitted to the activity in question and that she may therefore rule on the issue of fair use as a matter of law...
Gertner has been no fan of the labels' litigation campaign, telling industry lawyers in the past that they were "basically bankrupting people, and it's terribly critical that you stop it."
But that hasn't stopped her from taking on Team Tenenbaum's attempt to eviscerate copyright. As Nesson wrote in his pretrial outline of the case, "the idea of imposing law on the global ocean of free bits that has flooded into cyberspace is a gross and harmful over-extension of the power of the state and authority of the law." Gertner, whatever her own feelings on these kinds of cases, sees clearly that such claims amount to abolition of copyright in the digital age and are at odds with the law as currently written."
http://arstechnica.com/tech-policy/news/2009/07/judge-rejects-fair-use-defense-as-tenenbaum-p2p-trial-begins.ars
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