Convicted File-Sharer: DRM-Free Tracks on KaZaA to Blame

Tenenbaum’s attorney argues in request for retrial that Joel Tenenbaum and other music listeners could not get “exactly the songs they wanted, in exactly the format they wanted” until the music industry did away with DRM in 2007, and that the availability of DRM-free tracks on Napster and KaZaA” contributed substantially to their immense public appeal.”

Harvard Law Professor Charles Nesson has formally filed a motion for a retrial in the case of convicted file-sharer Joel Tenenbaum. Tenenbaum was found guilty of copyright infringement for illegally sharing 30 songs this past August and was fined $22,500 p/song for a total of $675,000.

Tenenbaum’s attorney is arguing that Tenenbaum and other music listeners could not get “exactly the songs they wanted, in exactly the format they wanted” until the music industry did away with DRM in 2007, meaning that the time frame he can claim a fair use extension should be extended from 2003, the birth of iTunes, to 2007.

The judge in the case, Judge Nancy Gertner in the District of Massachusetts, had allowed for a fair us” exemption for illegal file-sharing only from 1999 until the music industry began offering legal alternatives around 2003 with the advent of Apple’s iTunes Music Store.

Nesson says the music industry is partially to blame for illegal file-sharing, that it should have known to some degree that by publishing copyrighted material that it would be “ripped and shared on P2P networks,” and that by not offering alternatives to P2P, as was certainly the case back in 2004 when Tenenbaum’s alleged illegal downloading is said to have occurred, the music industry created an environment “ripe” for illegal file-sharing.

From the motion:

Copyright law took a step forward when this Court became the first to recognize a fair use interregnum for copyright infringement following the debut of Napster. The Court’s recognition of unfairness in the disparity of choice faced by music consumers between the attractiveness of using Napster to download unencrypted cost-free music and the total absence of any authorized online source was a victory for a generation known as Digital Natives. Yet this victory in principle turned out to be a catastrophic loss in practice for Defendant Joel Tenenbaum when the Court improperly identified the end of this interregnum period as occurring with the introduction of iTunes in the spring of 2003. In so doing, the Court ignored the impact on encryption the fairness of music consumers’ choice.

Nesson notes that Tenenbaum and other music listeners could not get “exactly the songs they wanted, in exactly the format they wanted” until the music industry dropped DRM in 2007.

Prior to that, he adds, record labels had “essentially boxed music consumers like Tenenbaum into an unfair choice,” and that he could only “go through the concededly inadequate process of purchasing a full album of unencrypted songs on CD and then transferring the songs to his computer and other listening devices.”

By releasing DRM-free physical CDS while maintaining DRM only digital downloads, the record labels “could reasonably be considered to have been at least partially responsible for the wide-spread dispersion of their recordings over P2P networks like Napster and Kazaa,” he continues.

He notes that even if Tenenbaum did legally purchase individual digital tracks it is illegal under the anti-circumvention provision of the DMCA to remove their DRM protection so he could play them on platforms and devices of his own choosing.

“They failed to fence off the songs they published on CD by encrypting them, and they refused to provide an unencrypted online alternative for obtaining them,” Nesson furthers. “In consequence Tenenbaum, along with millions of others like him, fell into the vast, unfenced pool of unauthorized P2P file-sharing.”

So in other words, “KaZaA made me do it.”

Nesson closes by criticizing the size of the $675,000 judgment against Tenenbaum, noting that the he caused them “no provable damage” and that his “file-sharing was for personal not use, not for profit.”

So even if Judge Gertner refuses to reconsider their fair use argument, they will ask that the damage award 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,'” reads a statement from his legal team. “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?”

Let’s hope Judge Gertner decides to take a more balanced look this time around.

Stay tuned.

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