Tenenbaum Offers $21 Counter Offer to the RIAA

Convicted file-sharer argues that actual damages caused by illegally downloading 30 songs on KaZaA was $21, that being 70 cents for each song record labels would have received if he purchased the music from Apple’s iTunes.

Joel Tenenbaum was found guilty of copyright infringement for illegally downloading 30 songs on KaZaA this past August, and was fined a total of $675,000, or $22,500 p/song.

His attorney, Harvard Law Professor Charles Nesson, has already decided to appeal the verdict on the grounds that downloading music without a copyright holder’s permission qualifies for “fair use” exemption from copyright laws, and that if an individual file-sharer is not proven to have caused actual losses that they can’t be held liable for damages.

As part of his fair use argument Nesson is making the case 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 exemption should be extended from 2003, the birth of iTunes, to 2007.

Nesson has now filed an additional brief with the District Court of Massachusetts telling the court why Tenenbaum’s $675,000 ($22,500 p/song) judgment should be reduced to at most $21 (70 cents p/song), the amount the record labels would have received if he purchased the songs legally on Apple’s iTunes.

“Had he purchased the thirty songs on iTunes he would have paid 99 cents apiece, of which Apple would have passed on 70 cents to the record companies,” it reads. “Assuming, contrary to fact, that the record companies have zero costs so that every cent returned to them is profit, the total return would have been $21.00.”

It’s hard to argue with that. If he’s accused of downloading songs illegally and thereby depriving the record labels of the money to which they are otherwise entitled then $21, plus perhaps a small penalty of some sort, should be all he owes.

Nesson goes on to make the additional argument that simply because he had the songs in his “shared” folder doesn’t mean that he’s responsible for distributing the songs to millions of others as the record labels claim, and that they wouldn’t have realized a single additional sale if had indeed blocked access to his shared folder.

“Not a single person who downloaded these songs using Kazaa would have been impeded from obtaining them had Tenenbaum blocked access to his share folder. Tenenbaum was not a seeder of any of these songs,” it continues. “Whatever damage was caused by the distribution of these thirty immensely popular songs on the peer-to-peer networks was caused by the initial seeders. Once the initial seeds had proliferated, the addition of one more copy to the unlimited, easily-accessible supply could have had no economic consequence whatsoever.”

A hearing for Nesson’s new request to lower the judgment verdict is scheduled for February 23rd.

Stay tuned.

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