The Freedom Bulletin

After an afternoon of deliberations, a Boston jury awarded record companies $675,000 in the case of Joel Tenenbaum, who was found liable for illegally downloading 30 songs. This means he has to pay $22,500 for each song.

While not as ridiculous as the $1.9 million that Jammie Thomas was ordered to pay in the first ever illegal downloading case to go to trial, the damages, according to Tenenbaum and his lawyer as quoted in this article, are more than the grad student is able to pay, and he will probably declare bankruptcy.

The odds were against the defense from the beginning, since they were not allowed to argue that Tenenbaum’s actions constituted fair use, and Tenenbaum admitted on the stand that he had shared and downloaded the music. However, the main disagreement between the defendant and plaintiffs was not what Tenenbaum did but whether or not what he did was right or legal. On that debate, the jury struck a balance, awarding the record companies less than the $150,000 per song that they hoped for but more than the $750 the Tenenbaum hoped for.

I’ll blog back about this case later. For now, check out this recap of today’s events by Ben Sheffner from Ars Technica, or visit Tenenbaum’s official site, Joel Fights Back.

Judge Nancy Gertner has ruled that Joel Tenenbaum is liable for illegally downloadng and sharing 30 copyrighted songs. The BU grad student took the stand yesterday and answered yes when asked by a lawyer for the recording companies whether he shared the songs and whether he admitted liability.

Although his lawyer, Charles Nesson, argued that Tenenbaum did not know the full implications of his answers, Judge Gertner rejected that argument. Now the only issues for the jury to decide are whether Tenenbaum’s infringements were willful and how much he should pay in damages. The amount of money per song that Tenenbaum could have to pay ranges from $750 to $30,000, but if the infringement is willful the maximum fine could rise to $150,000 per song Willful infringement, according to Judge Gertner’s jury instructions, is committed with “reckless disregard” for copyrights.

The defense put on only one witness, Wayne Marshall, an ethnomusicologist from MIT who spoke for about 5 minutes this morning about how to download a song from Amazon.com. According to the Boston Globe, his testimony was supposed to show that although paid alternatives to free downloading are available now, they were not available in 1999 when Tenenbaum began file-sharing.

Sources & more info:

• Boston Globe – “Judge rules against BU grad student in illegal downloading case”
• BetaNews – “Joel Tenenbaum admits downloading music, found guilty of copyright infringement”

BU grad student Joel Tenenbaum took the stand today at his copyright-violation trial, admitting that he used Kazaa and LimeWire to share and download copyrighted music. Tim Reynolds, a lawyer for the four record companies who are the plaintiffs, asked Tenenbaum if he admitted liability for the thirty songs that the trial is focusing on, and he replied yes. He also admitted lying when he denied sharing the songs in written discovery records.

Tenenbaum was actually called as a witness for the plaintiffs, and he was cross-examined by his own lawyer, Charles Nesson. During cross examination he said that he loved music and had no intention of harming record labels or recording artists. Speaking about when he first discovered Napster, he described it as “great” and ”like the Google of music.”

The plaintiffs also called attorney Ron Wilcox, who spoke about the recording industry’s evolving digital music marketing efforts, and attorney Silda Palerm, who confirmed Warner Music Group’s ownership of songs that Tenenbaum is accused of sharing.

The defense has indicated that they will call Tenenbaum’s mother and a computer scientist to the stand. Their case should be wrapped up by mid-morning tomorrow.

Also today, the plaintiffs moved for a directed verdict on the issues of ownership, liability, and willfulness. If their motion is allowed, it will be taken for granted that Tenenbaum willfully infringed their copyrights, and the only issue that will be left to the jury is determining the amount of damages Tenenbaum must pay. Judge Nancy Gertner indicated that she will grant the motion with respect to ownership and liability, but not necessarily willfulness. She also said that she would instruct the jury that willfulness entails knowledge of or reckless disregard for the plaintiffs’ copyrights, not necessarily intent to profit from the infringements.

Sources & more info:

• Ars Technica – “Tenenbaum takes the stand: I used P2P and lied about it”
• Boston Globe – “BU student’s admission of illegal downloads may cost him $4.5 m”

The copyright-infringement trial of Joel Tenenbaum finished its third day (counting jury selection) yesterday. Although I haven’t been able to be there because of work, I’ve been following it in the news and I’m rooting for Tenenbaum. Here are some of the highlights from the trial so far:

• Jury selection was on Monday. While lawyers for the four record companies suing Tenenbaum asked fairly typical questions about their attitudes toward music companies and file-sharing, Tenenbaum’s lawyer, Harvard law professor Charles Nesson, asked what prospective jurors thought about his turtleneck and the legalization of marijuana.
• Opening arguments took place yesterday. Attorney Timothy Reynolds, for the record companies, stuck to the book, saying Tenenbaum knew what he was doing was wrong. Nesson, on the other hand, cut open a piece of foam wrapped in cellophane, which represented what happened to the recording industry with the advent of the Internet.  
• Tenenbaum’s father testified yesterday that his son showed him the file-sharing program Kazaa when he was in high school.
• The record companies allege Tenenbaum shared over 800 songs, but for this trial they are focusing on 30 songs by artists such as Aerosmith, Green Day, Linkin Park, and Eminem.
• Tenenbaum could be fined $750 to $30,000 for each song, or over $150,000 each if the infringement is found to be willful. This adds up to a potential total of $4.5 million.
• The RIAA has sent threatening letters to over 18,000 people accused of illegal file-sharing. All have settled out of court, usually for about $3000 to $5000, except for Jammie Thomas and now Tenenbaum.
• Tenenbaum, unlike Jammie Thomas, admits to downloading the files in question, so Nesson’s strategy seems to be to either jury nullification or getting the jury to decide on as low a fine as possible.
• Today one of Tenenbaum’s own lawyers, Matthew Feinberg, told Judge Nancy Gertner, “We’re admitting liability” outside the presence of the jury. However, the case will still go on as expected, and liability will be determined by the jury.
• Dr. Douglas Jacobson, an expert for the plaintiffs, testified today about the forensic computer evidence that shows that Tenenbaum downloaded the 30 songs he’s being sued over.
• Also today, economics professor Stanley Liebowitz testified about the harm that file-sharing did to the music industry, arguing that a $10 million drop in revenues between 1999 and 2008 was caused by Napster, which debuted in 1999.
• The defense case is scheduled to begin tomorrow.

Sources & more info:

• Boston Globe – “Opening statements made in civil suit over swapping songs”
• Ars Technica = “Tenenbaum P2P trial features prophetic warning of doom”
• Ars Technica – “Tenenbaum lawyer admits liability; damages now main issue”

Mass. gubernatorial candidate Christy Mihos has put a webcam on his site showing the traffic going from Massachusetts to New Hampshire because of the sales tax hike. I think this is a pretty cool, offbeat idea, although he should find out the average number of cars crossing the border per day before the increase for comparison. I bet there will be a difference once the 6.25% sales tax goes into effect.

Check it out here.

Today a BU grad student, Joel Tenenbaum, went on trial at Boston’s federal courthouse for alleged illegal file-sharing. Several record companies, all members of the Recording Industry Association of America (RIAA), are suing him for downloading and making available 30 songs on Kazaa. I blogged about this case earlier, which you can read here.

Unfortunately for Tenenbaum and his defense lawyer, Harvard law professor Charles Nesson, Judge Nancy Gertner rejected a defense argument that downloading songs for personal use counts as fair use. She ruled that the fair use exception might apply if someone sampled mp3 files and then deleted them, if the files were copied only to move them from physical CDs to a computer, or if the infringement took place before laws concerning file-sharing were clearly established. However, the defense argument that Tenenbaum’s actions constituted fair use because he was downloading the music for personal use would basically get rid of copyright protections entirely, said Gertner.

I agree with Judge Gertner that existing laws do not support extending fair use to encompass Tenenbaum’s alleged activities, but I am generally on the side of the defense in cases like this. Current copyright laws don’t make sense and should change. It’s one thing for it to be illegal to share copyrighted files on sites like Kazaa, but it’s another thing to punish people who do it with millions of dollars in damages. In the first file-sharing case to go to trial (this is the second), Jammie Thomas-Rasset was fined $1.92 million, and Tenenbaum could be facing a similar penalty. I think this is a little ridiculous. File-sharing doesn’t directly hurt anyone and is not a direct violation of anyone’s rights; it just indirectly reduces record companies’ profits. Mp3 files sell for about $1, and a fine of $80,000 per song, which is what Thomas was charged, is clearly out of proportion to the “crime.” On a slightly unrelated note, it is just intuitively wrong that it is illegal to create a fan site or fan video with pictures of a celebrity. This, to me, really illustrates the fact that copyright laws need to change.

Tenenbaum has admitted to the file-sharing activities he’s charged with, and authorities have the hard drives from his computers, so there are not many facts in question, and as a result the trial isn’t expected to last long. I unfortunately don’t have the time to go to this one personally, but I’ll be following the news reports and updating here when I can.

A jury was picked today (after a half dozen potential jurors who admitted to file-sharing were dismissed for cause), and opening arguments are scheduled for tomorrow.

Sources & more info:

• Joel Fights Back
• Ars Technica – “Judge rejects fair use defense as Tenenbaum P2P trial begins”
• Ars Technica – “Tenenbaum trial begins with ‘tortured’ jury selection”
• Boston Globe – “Record labels battle BU grad student in federal court”

A while ago, I promised to make a post going into more detail on the issue of airport security, and how the backscatter machines that show people’s naked bodies are a violation of privacy rights and of the Constitution. However, I found this absolutely awesome article at the Campaign for Liberty which says it better than I could. This is probably the best article that I have ever read, on any topic, in any newspaper, magazine, or website. In it, he says everything that I’ve always believed. It makes me happy that someone I’ve never met before thinks exactly the same thing I do. You simply must read this article:

“Liberty is an absolute” by Tom Mullen

Having said that, there are also a few updates in the battle against the naked machines. As you may recall, the TSA decided to switch from making everyone go through metal detectors and only go through the naked machines if they set the metal detector off, to making everyone go through the naked machines. This is obviously a change for the worse.

Thankfully, Congressman Jason Chaffetz (R-Utah) introduced a bill restricting these machines to people who fail the primary screening method (metal detectors), and the House of Representatives passed it! This bill is the least the government could do to secure people’s privacy rights at the airport. I think it would be ideal if the naked machines were banned entirely, as well as the practices of making people take their shoes off and take out all the liquids that they’re carrying. Chaffetz’s bill is very moderate and reasonable, and the Senate would have to be crazy not to pass it. I don’t know when they’re going to vote on it, though. Unfortunately, there has been very little media coverage of the whole naked machine issue, and Congress is more focused on “health care reform” than stopping everyone who boards a plane from being forcibly strip searched.

Also, the Electronic Privacy Information Center is campaigning against the naked machines, and the TSA responded last month to their criticism by simply saying exactly what they’ve been saying since the naked machines were invented: your face is blurred, the officer who sees the naked images is not near you, and the images are never stored or transmitted. These things may be true, but they really don’t make anything any better. The reason why EPIC, myself, and others who believe in privacy rights oppose the naked machines is not because they reveal people’s faces or identities, but because they reveal people’s naked bodies. None of the TSA’s so-called privacy measures do anything about this. I don’t want people looking at my naked body, even if they don’t know my name or see my face.

I will blog again if there are any significant developments. I hope there will be soon, since I’m not boarding an airplane if I have to go through the naked machines first.