Maybe it’s our imagination, but last we checked, Joel Tenenbaum is not an admin of ThePirateBay nor did he have much involvement in the creation of the mixtape outside of the court documents that listed the songs in the first place.

Still, that doesn’t stop the RIAA member from pulling out all of the stops against Tenenbaum. In court documents, plaintiffs argued, “on or about August 14, 2009, Defendant posted to the “JoelFightsBack” twitter
site—a site intended to publicize Defendant and this case—the following post: “interesting: a
“joel” torrent list of the 30 songs is now on thepirateBay/other torrent sites and is being DL
widely in protest. #JFB.”

The document continues, “The Pirate Bay’s homepage, to which Defendant directed his readers,
prominently featured a photograph of Defendant and an advertisement and link to an allegedly
RIAA approved torrent, “DJ Joel – The $675,000 Mixtape,” containing the 30 songs at issue in
this case”

The document contained a screen shot of the home page of ThePirateBay which, at the time, featured the $675,000 mixtape. The document says, “When a user clicks on the image, they are brought to a Torrent site that allows users to easily, and without authorization or cost, download the 30 sound recordings for which
Defendant was found liable.”

“Additionally, Defendant’s website regarding this case, www.joelfightsback.com, includes literally dozens of other users who have picked up the “tweet” from joelfightsback and have reposted it to their own blogs and twitter feeds, thereby encouraging countless other individuals to illegally download these 30 songs “in protest” [...] In short, despite the verdict and a clear finding of willful copyright infringement by Defendant, he continues to promote, indeed advertise, illegal online file-sharing of Plaintiffs’ copyrighted sound recordings—the very sound recordings for which a jury found him liable for willful copyright infringement”

It should be noted that there were three other arguments to support the plaintiffs conclusion, but using the mixtape someone half way around the world posted on a Swedish website as reason to say that Tenenbaum is contributing to copyright infringement (we aren’t aware of any evidence in the plaintiffs court documents that Tenebaum linked to that website in the first place) is absurd at best. If someone photoshopped a picture of Bill Gates breaking in to a car, does that make Bill Gates liable for car theft if it was posted online? The only thing plaintiffs showed was that Tenebaum mentioned the mixtape. If one were to say, “Interesting that someone in America would take cocaine”, is that somehow endorsing illegal drug use?

So what is the plaintiff asking for?

This court should permanently enjoining defendant from committing, or acting in concert with others in committing, future infringement of plaintiffs’ copyrights

This court should enter the monetary judgement awarded by the jury on July 31, 2009

It’s an extremely bizarre argument to make that suggests that others actions are somehow your fault even though you took no part in the creation or actions that started to, in this case, create the actual mixtape in the first place. It’s a growing theme that the copyright industry wants to double-dip – you are sued for your action and the action of your friend. Then that friend is sued for their action as well as yours. Essentially, it’s like your being sued twice for the same action.

We wonder how such an argument could be taken seriously, but then again, there are reasons why some believe the American court system has been bought and paid for by corporate America.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

There’s been the odd rumour here and there that Microsoft is colluding with copyright holders from time to time. One rumour suggested that Longhorn, now known as Vista, would not play unlicensed content. Of course, rumours like that eventually fell apart sometime during the release of the OS. This is what makes the notion that Windows 7 is designed for piracy.

The report comes from Wired via CNN where the author put together 7 reasons to use Windows 7. One of the reasons to switch to Windows 7? Piracy will now be a breeze:

Yarr! We know there are plenty of you out there downloading pirated digital booty, especially in Windows land. But it’s never been convenient to be a pirate compared with being a paying customer. For example, if you’re a legitimate buyer purchasing movies off iTunes, you can easily stream your media to your legitimately purchased Apple TV. If you’re a pirate, you’d have to go through roundabout programs and hardware to re-create the experience.

Windows 7 is an OS practically made for pirates. Want to display your movies, photos or music on your TV? Bam! Windows Media Player will do that out of the box if you have a Wi-Fi enabled TV, or an Xbox. No extra programs to install: Windows Media Player seamlessly communicates with your Wi-Fi device to display your illegal content in all its glory on your fancy HD TV.

And sharing media is easy, too. Want to download all of your brother’s music? Bam! HomeGroup, an easy networking feature included in Windows 7, will make that super easy between computers running the OS. Immediately upon plugging in to your network with Ethernet or Wi-Fi, HomeGroup will ask if you wish to join the group on the network, allowing you to set up easy file sharing in minutes.

It’s more than likely that this reason is a little tongue and cheek, though it’s doubtful groups like the RIAA would be laughing. Still, some Windows supporters in the past have suggested that Microsoft continues to dominate in the OS market, in part, thanks to not actually proving the rumours that there would be a form of trusted computing that would quash all forms of unauthorized content.

It’s unclear how Microsoft would actually handle the label of Windows 7 as being a Piracy Operating System, but content being shared between computers isn’t an entirely new thing for Windows given the shared directory has been part of a Microsoft Operating System for quite some time now – not to mention the whole concept of networking computing.

Regardless, it’s hard not to see the humour in the idea that Windows is “made for pirates”. We can already see the sales being higher than expected already.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

The appeals process takes time. That’s why we haven’t heard much from the Jammie Thomas case in a few months now. Back then, many Americans saw the award of $1.92 million as shocking and another reason to see the copyright laws as a departure from reality. The verdict even made waves during the Canadian copyright consultation as major reason to not go down the lawsuit road while considering new copyright laws.

That’s what, for many, makes this latest development all the more shocking.

According to a legal brief filed by the Department of Justice, the Department of Justice is arguing, “If it is necessary to reach the constitutional question to resolve defendant’s motion, then defendant’s motion should be rejected because Conress’ carefully crafted statute satisfies the Due Process Claus.”

They further argue, “The current damages range provides compensation for copyright owners because, inter alia, there exist situations in which actual damages are hard to quantify. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process.”

In other words, they argue that because there is little to no evidence that points to actual harm, the damages should be this high in the first place and, therefor, not unconstitutional to fine a young woman $1.92 million for sharing non-commercial copies of 24 songs.

In short, philosophically speaking, the Department of Justice’s argument is this: Actual damages is hard to show. Congress made a copyright law with a given range of damages. Therefor Thomas cannot claim damages are unconstitutional.

There’s probably hundreds of ways to point out why this argument fails. Saying that actual damages are hard to claim is irrelevant to how constitutional the award is. So premise one doesn’t work. Congress have passed copyright laws, but laws can be overruled by the constitution. If congress passed a law that dictated that no more elections shall be had and the current party must stay permanently in power, the constitution would overrule it. Since the constitution has power over lawmaking, premise two is false. Therefor, the DoJ argument fails miserably here.

The bigger concern here is that this is a plain example of a government backing a few particular corporations. Why is the government trying to interfere in this particular case – especially helping the RIAA gang up on someone who has little to no hope in paying off the $1.92 million award in the first place. One wonders why the RIAA needs the whole government backing their case in the first place? Was it getting difficult to fight in the first place and has to resort to the whole government with their unlimited resources to help win the case?

In any event, the government backing the RIAA in a lawsuit may be more disturbing than the fact that the defendant was fined $1.92 million for sharing 24 songs non-commercially.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Late last week we saw the closely watched retrial against accused file-sharer Jammie Thomas come to a close with the jury finding the suburban mother of two guilty and ordering her to pay some $1.92 million in damages.

Accused of illegally “making available” 24 songs in her KaZaA shared folder, the verdict comes out to a staggering $80,000 per song! It was immediately met with widespread criticism, many observing the fact that for each of the 24 songs you could purchase 80,000 more on iTunes.

Electonica wunderkind Moby added his voice to the discussion in a blog post on his site.

“Arg,” he groaned. “What utter nonsense.”

We can all agree on that one.

“This is how the record companies want to protect themselves? Suing suburban moms for listening to music? Charging $80,000 per song?”

In fact, the amount was so enormous that it didn’t serve as a warning to others as the RIAA hoped, or at least often claims. Instead the amount was seen as outlandish, bearing little semblance of the damage she alone could’ve been responsible for, and illustrated to the world just how desperate and out of touch the RIAA really is.

Moby argues this “sue-em all” strategy isn’t the way to go, that the record industry’s business model shouldn’t be based on fear and intimidation of file-sharing music fans. Considering that numerous studies have concluded that P2P actually increases music consumption, suing file-sharers has a particularly negative effect on music sales.

He furthers:

Punishing people for listening to music is exactly the wrong way to protect the music business. Maybe the record companies have adopted the ‘it’s better to be feared than respected’ approach to dealing with music fans. I don’t know, but ‘it’s better to be feared than respected’ doesn’t seem like such a sustainable business model when it comes to consumer choice. How about a new model of ‘it’s better to be loved for helping artists make good records and giving consumers great records at reasonable prices’?

The RIAA has spent more than 10yrs suing more than 35,000 people and has yet to reduce the number of file-sharers, or establish any meaningful, fear-based deterrence to the practice.

In short, by any measure lawsuits have failed miserably and only seem to punish people for simply wanting to listen to music, something many musicians are glad to have happen.

“I”m so sorry that any music fan anywhere is ever made to feel bad for making the effort to listen to music,” adds Moby.

Now to be fair he RIAA says it quit suing new file-sharers last September, but it continues to file NEW lawsuits so actions speaker louder than words.

Moby has an idea of what should happen to it.

“The RIAA needs to be disbanded.”

I agree.

jared@zeropaid.com

[Hat Tip]

The Jammie Thomas trial took a shocking turn for the worse. During the short re-trial, a jury found Jammie Thomas liable for wilful copyright infringement for sharing 24 songs and fined her $1.92 Million. This latest verdict is fresh blow to file-sharers within the United States.

This doesn’t mean the end of the road for the trial. Already, the EFF is suggesting that the damages awarded might be considered unconstitutional:

First, the Supreme Court has made it clear that “grossly excessive” punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as “new”) violate the Due Process clause of the U.S. Constitution. In evaluating whether an award “grossly excessive,” courts evaluate three criteria: 1) the degree of reprehensibility of the defendant’s actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into “grossly excessive”? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset’s attorneys.

Second, recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. In other words, the award should be aimed at deterring this defendant, not giving the plaintiff a windfall in order to send a message to others who might be tempted to infringe. It’s hard to know without having been in the courtroom, but if the record industry lawyers urged the jury to “send a message” to the millions of other American file-sharers out there, they may have crossed the constitutional line.

For more on the details of these constitutional doctrines, I recommend a recent article by Prof. Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform (full disclosure: Prof. Samuelson is a member of EFF’s board of directors). For those who want a shorter summary of the debate in podcast form, I recommend Prof. Douglas Lichtman’s IP Colloquim episode entitled Statutory Damages and the Tenenbaum Litigation. While I disagree with some of Prof. Lichtman’s conclusions, his guests do a wonderful job summarizing the relevant cases and concepts.

I assume these arguments will first be submitted to the trial judge in post-trial motions. After all, this judge has already indicated that he found the previous $220,000 award to be “unprecedented and oppressive.”

As we’ve already noted in a previous article:

Already, Jammie Thomas lost her case back in 2007 where she was fined $222,000 for sharing 24 songs on the FastTrack network. Then, in a surprising turn of events, Judge Davis threw out the case because of an error on his part. The main reason for the case being thrown out was because he instructed the jurors that merely placing copyrighted works in a shared point constitutes copyright infringement. Realizing this error, he threw the case out saying that steps to allow distribution does not, in and of itself, constitute copyright infringement. In short, it was a “manifest error in law”. The record labels were not happy about the turn of events. They consequently appealed the mistrial ruling saying that the judge had correctly instructed the jurors in this case and that the trial was legitimate. Unfortunately for the major record labels, the judge denied that appeal – that paved the way to this trial many had expected to go over better than her original $222,000 fine. Unfortunately, it seems that this case has actually taken a turn for the worse this time around. One hopes that the new appeal will work out better.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Early on this month, lawyers working on Jammie Thomas’ defence argued that the evidence gathered by Media Sentry should be barred from the case because the evidence was gathered illegally. From our previous report discussing the motion:

“MediaSentry collected the evidence against Jammie Thomas in violation of the
Minnesota Private Detective Act and the federal Pen Register and Trap and Trace Devices Act and Electronic Communications Privacy Act of 1986,” reads the motion. “These violations were crimes under Minnesota law and federal law.”

The case could set a very interesting precedent because it could confirm or deny the legitimacy of the legal threats the copyright industry had issued in years past. Tens of thousands of US residents have received legal threats saying that if they don’t pay a few thousand dollars, then the copyright industry would take them to court where they would face jail time and hundreds of thousands of dollars per infringement. All the way up to this point, no case has reached a verdict in the United States.

Already, Jammie Thomas lost her case back in 2007 where she was fined $222,000 for sharing 24 songs on the FastTrack network. Then, in a surprising turn of events, Judge Davis threw out the case because of an error on his part. The main reason for the case being thrown out was because he instructed the jurors that merely placing copyrighted works in a shared point constitutes copyright infringement. Realizing this error, he threw the case out saying that steps to allow distribution does not, in and of itself, constitute copyright infringement. In short, it was a “manifest error in law”. The record labels were not happy about the turn of events. They consequently appealed the mistrial ruling saying that the judge had correctly instructed the jurors in this case and that the trial was legitimate. Unfortunately for the major record labels, the judge denied that appeal, allowing for the new trial that will take place tomorrow.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

This week marks the 10th anniversary of the birth of Napster, the creation of which heralded a new era of music distribution that would change the music industry forever, and former RIAA CEO Hillary Rosen, who led the RIAA during this tumultuous time, gives her thoughts about it in a recent interview.

She begins by observing that Napster marked the beginning of the need for the music industry to make some “hard decisions” in terms of the need for a digital performance rate, and better cooperation with the technology industry to adequately address interoperability issues.

More importantly, she says that it suddenly “brought consumers into the discussion for the first time.”

“All of a sudden, record companies started hearing from music fans in a way they never had before,” she says. “The ‘customer’ for record companies for many years were radio stations and record stores. All of a sudden record companies were on the hook from music fans.”

As we all know, Napster was about putting the control into consumers’ hands so they could find virtually any song they could think of and, as importantly, they could easily discover and enjoy new music. It quickly became an ever-expanding world of music discovery. In virtually one instant, all of the power belonged to the consumer.

Rosen says Napster also led the technologhy industry to “invest and innovate around the use of music online.”

To those that argue that the music industry should have embraced Napster and developed a subscription service before decentralized P2P programs like KaZaA and others made it irrelevant, she says that although she was for it, many music industry groups were opposed, that many were afraid they wouldn’t get properly compensated.

She furthers:

I’ve been quoted as saying the record companies should have jumped off the cliff and signed a deal. I thought it at the time. It was well documented that I privately urged that. But it would have been jumping off a cliff, and people have to understand that. The artists were against it. The publishers were against it. Nobody knew how they were going to get paid. Napster had promised they were going to go from a free service to a pay service. By the time those promises had occurred, peer-to-peer had become much more widespread outside the Napster system. So it ended up being much more complicated to figure out how to create a system as user friendly as Napster in a pay environment that could compete effectively with P2P. There were 100 reasons not to do it, and only one or two to do it. Those one or two reasons were more compelling in the long term, but a much bigger decision and tougher decision.

So in other words, by the time it had figured out a deal it was too late.

Rosen also discusses the Pirate Bay’s guilty verdict, observing that there’s a “sad irony” that music industry got a smilar verdict as the one against Napster a decade ago, and yet are still “powerless to stop the piracy.”

“For many years, I argued to deaf voices that the industry needed to do some public education campaign about music appreciation,” she says. “That there wasn’t enough sense that music had value, that it mattered. The record companies themselves weren’t used to being companies that were answerable to the public.”

She says that ultimately the music industry will have to partner with artists to earn revenue from the “whole of a musical experience” if it is to survive. By whole, she means getting a cut of concert ticket and merchandise sales, the last remaining artist revenue stream untouched by the RIAA.

“Artists still need partners,” she says. “There’s no reason record companies shouldn’t be those partners.”

Moreover, Rosen, reflecting on the 10-year anniversary of Napster’s birth, calls it the “day the fans took control.”

“The industry has been on its heels ever since.”

Indeed it has.

jared@zeropaid.com

The attorneys for Jammie Thomas, the native-american single mother of two accused by the RIAA of illegally "making available" 24 songs on KaZaA back in 2005, and who has the distinction of being the first file-sharer to be tried by a jury, have filed a motion to suppress the evidence collected by anti-piracy firm Media Sentry for use by the RIAA.

They argue that MediaSentry collected evidence in violation of federal, Minnesota, and New Jersey (where Media Sentry was based) wiretapping statutes, as well as the Minnesota private investigator statute – making the act a crime. 

"MediaSentry collected the evidence against Jammie Thomas in violation of the
Minnesota Private Detective Act and the federal Pen Register and Trap and Trace Devices Act and Electronic Communications Privacy Act of 1986," reads the motion. "These violations were crimes under Minnesota law and federal law."

"A federal court has power to suppress illegally obtained evidence when that evidence was obtained at the direction and under the supervision of lawyers in violation of their ethical obligations," it adds.

The recording industry’s only evidence that Jammie Thomas ever downloaded or
shared music on KaZaA is the evidence that MediaSentry collected. MediaSentry collected this evidence in violation of federal and state criminal statutes that prohibit wiretapping and require that private investigators be properly trained and licensed. It collected this evidence at the direction and under the supervision of lawyers for the RIAA.

Thomas’ attorneys conclude by saying that suppression is the proper remedy for violations of these ethical rules under both federal common law and the Minnesota wiretapping statute – particularly since these lawyers were on notice from multiple state attorneys general that what they were doing was illegal and since the evidence is being used in a national litigation campaign, not in a single, isolated case.

"It is an unethical strategy created by lawyers to obtain evidence by criminal means and use this evidence to intimidate individuals, usually unrepresented by counsel, into settling so often that out of more than 30,000 defendants over seven years, Jammie Thomas is the first to take her case to trial. What drives this campaign is the illegal evidence that MediaSentry collects. What would end it is suppression of that evidence."

Thomas initially lost her trial by jury, but the judge admitted to making a mistake and granted Thomas a retrial. The RIAA appealed, but they lost that appeal, paving the way for a brand new trial, which is slated to begin June 15th in Minneapolis, Minnesota.

Stay tuned

jared@zeropaid.com

Sometimes people in this world are better off not saying anything at all when it comes to controversial issues and Steven Marks, general counsel for the RIAA, is just such a person.

Last Wednesday I reported on how Harvard Professor Charles Nesson, who is defending Joel Tenenbaum against charges that he illegally downloaded 7 songs back in 2004, wrote an op-ed piece decrying RIAA lawsuits targeting illegal file-sharers as an “unconstitutional abuse of law,” and that the real problem is the tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world.

Now Steven Marks, general counsel for the RIAA, has been given equal time to espouse his views on the the RIAA’s litigation, or what it calls “education,” campaign.

“The record industry is swept up in a sea of change and we have embraced it,” says Marks to counter the charges that it isn’t satisfying consumer demand.

“Let’s be clear: the best anti-piracy strategy is a vibrant legitimate marketplace rich with content and innovative business models. We get that,” he adds.

Oh really?

So was this before or after all the brick and mortar retailers evaporated? The RIAA has never cared about music fans or artists, only how much money it can squeeze per unit. If it has truly “embraced” change then how does it justify charging digital album prices that are the same as those of physical album prices when they lack anywhere near the cost of distribution?

Why does it still insist on DRM protection for many digital music stores when it knows that’s exactly what drives music fans to illegal file-sharing sites?

How about the fact that it’s also oftentimes selection of music that music fans and just isn’t offered by any of the RIAA’s so-called “embracement” projects or partnerships? Record labels only make part of their catalog available for digital downloads, and so long as there’s a gap between the two people will use illegal file-sharing to satisfy demand.

The best part is where Marks sort of glosses over its decade of ineptitude, saying that “four years ago, the industry earned virtually no revenues from digital music services.”

Now who’s fault was that? Napster appeared nearly 10 years ago, and if the RIAA really cared about music fans or artists for that matter, would it have spent 6 years suing everybody it could, up to this very day in fact after it insisted it quit its “education” campaign last August?

Marks goes on to say that “to enable that legal marketplace to reach its full potential, we still need to educate fans about the law and illegal sites that do not compensate artists for their work.” If it wants to “educate” people then why did it fight Nesson’s attempts to have the trial against Tenenbaum broadcast live on the Internet for all to see? What better way to “educate” file-sharers than that? It was a sentiment echoed by District Court Judge Nancy Gertner

“While the Plaintiffs object to the narrowcasting of this proceeding, their objections are curious,” she observed. “At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation.”

All the RIAA has done has intimidate people, knowing full well that most accused file-sharers can’t afford the costs of mounting a legal defense. Where’s the sense of justice or even the hint of education in that? All lawsuits do, as many artists have pointed out, is alienate music fans and make them turned off to the prospect of supporting them in the future by buying new albums. Would you buy an album from EMI, for example, after having been threatened to pony up $3,000 USD or else?

The music industry needs to find ways to “monetise their behaviour” not discourage it, noted Billy Brag of the Featured artists Coalition recently.

Marks also voices his pleasure that we are on the cusp of transitioning to a “more effective strategy” of fighting illegal file-sharing, “working with Internet Service Providers to forward notices of copyright theft directly to subscribers to point out that their illegal activity has been detected.”

So in other words, the RIAA’s “embracement of change” by creating plans for “innovation and experimentation” in the music marketplace means an intrusion into the privacy of those same music fans they claim to be listening to? How does filtering and monitoring the transfer of files between people online strengthen the music industry as a whole?

Again Bragg’s recent comments ring true, as he remarks about efforts in the UK by the music industry there to get ISPs to institute a “three-strikes” system to disconnect illegal file-sharers.

“Stating that a ‘write and sue’ policy will not work is an admission that the current copyright law is no longer fit for purpose in a digital age,” he writes. “The government has pointed out to the BPI that if it wants to crack down on unauthorized file-sharing, the law is already on its side. Fearful of the prospect of dragging their customers though the courts, with all the attendant costs and bad publicity, members of the record industry have come up with a simple, cost-free solution to their problem: get the ISPs to do their dirty work for them.”

Bragg points out that the plan is flawed for several reasons. He says not only is it “shameful” to force another industry to prop up failings of your own in another, but also questions how it expects to stay ahead of technology if it’s never been able to do so in the past.

“Any unauthorized file-sharers who fear being caught out can simply encrypt their exchanges,” he adds.

Just to make sure any file-sharers out there think that a switch to monitoring your Internet traffic at the ISP might give you a free pass for past transgressions, Marks makes it clear that the RIAA will show no mercy.

“That doesn’t mean a free pass to those who egregiously downloaded unauthorized music in the past or who refuse repeated offers to discuss a reasonable settlement,” he continues.

Is $3000 plus dollars really a “reasonable” amount to the teenagers and poor college students it mainly targets? I think not. Of the more than 35,000 plus file-sharers targeted by the RIAA less than a dozen have seen the inside of a courtroom. Why? Resources.

Marks also criticizes the fact that Tenenbaum admitted to downloading 7 songs illegally and refuses to answer for it. He says that Nesson is trying to transform the court into a “three-ring circus” for trying to “gut the copyright laws.”

Nesson is simply arguing that when Congress wrote the Copyright Act it never intended to allow copyright holders to target “pro se noncommercial defendants,” those acquiring content for personal use.

He furthers that the real problem in all of this is that antiquated copyright laws have yet to catch up to the realities of our digital age. The tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world, is what really must be addressed. Nesson has even recently argued that downloading music without permission of copyright holder qualifies for “fair use” exemption from copyright laws.

“We’ve never once sought maximum damages in our court cases against individual downloaders,” Marks writes. “We let courts and juries decide the appropriate dollar amount for any case that reaches that far stage.”

Nevermind that it doesn’t have to, just ask Jammie Thomas when she was initially found liable for $220,000 for illegally sharing 24 songs.

“And this program has never been about the dollars—we lose money on it and any recoveries are a small fraction of the enormous toll wrought upon the music community.”

Oh really? If it’s never been “about the dollars” then why go out of your way to make sure accused file-sharers don’t get their day in court? If it’s to “educate” then why not get the courts to say so, or to allow your arguments to be watched live by millions for the first time?

It’s just more of the same nonsense from the RIAA and the decade-long “three-ring circus” of its own.

jared@zeroapid.com

Harvard Law professor Charles Nesson is preparing a very interesting defense for Joel Tenenbaum who is accused of illegally downloading 7 songs back in 2004. He’s not going to argue that he didn’t do it. Nesson is now contending that sharing files with your “friends” over the Internet isn’t actually a crime, and is covered under well-established “Fair Use” laws. Furthermore, according to Nesson, the aggrieved party in a file-copying case isn’t entitled to any damages anyway.

“Fairness borders copyright infringement,” reads Nesson’s court brief. “Proving that the defendant infringed entails proving that his copying was not fair. Whether the unfairness of a noncommercial defendant’s use need be proved as part of the copyright holder’s affirmative case or whether the fairness of the defendant’s alleged copying must be advanced by the defendant as an affirmative defense, the issue of the fairness of the defendant’s use is integral to the decision the jury must make as

to whether the defendant’s actions were infringements.”

Judges normally use four factors in resolving fair use disputes, which are discussed in detail below. It’s important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

The four factors judges consider under section 107 of the Copyright Act are:

1. the purpose and character of the use, including whether such use is of a

   commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted

   work.

“Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors,” continues the brief. “Just as they are articulated in the statute, with the jury to decide their meaning as they apply to the facts of his particular case. Defendant Tenenbaum expects and plans as well to offer the jury evidence relating other factors that bear on the jury’s assessment of whether the defendant’s actions in their context were unfair.”

Nesson says that also intends to argue that the music industry is partially to blame for illegal file-sharing. He says 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 the alleged crime is said to have occurred, the music industry created an environment ripe for illegal file-sharing.

In a separate filing in response to the US Department of Justice in relation to the case, Nesson argued that statutory copyright damages, which can run to thousands of dollars per song downloaded, should not apply in non-commercial cases.

“Commercial copying without permission is the clear target of the Copyright Act -

- not the noncommercial user,” it reads.

Moreover, Tenenbaum’s “actual use of the copyrighted works” is what’s most important, and never did he use them for commercial gain and thereby inflict any damages to the music industry.

But most significantly, Nesson says the govt ignores the structure of the statutory damage provision of the Copyright Act itself.

Section 504(a) of the statute provides that:

Except as otherwise provided by this title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any additional profits of the infringer …; or

(2) statutory damages ….

Being that the operative word is “or,” the RIAA must elect to receive either actual damages or statutory damages. A copyright holder is entitled receive either actual damages or statutory damages precisely because those two remedies are presumed to be equivalent to one another.

“It would be a bizarre statute indeed that offered two completely unrelated remedies within the same section: we imagine, for example, that the Court would be baffled by a statute that granted a plaintiff the choice between two remedies, one of which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month,” continues the brief. “By including the remedies side by side in the Copyright Act, there is a strong textual suggestion that they are to a certain extent comparable to one another; that in some way they provide the same remedy for plaintiffs. Indeed, the precise reason that Congress authorized statutory damages in cases of copyright infringement was that the damages associated with infringement are generally extremely difficult to prove in court: commercial infringers rarely keep records of their business activities, and it may therefore be difficult for copyright holders to prove the profits of those infringers.”

Since individual individual noncommercial copying results in no provable actual harm to the copyright holder the damages should also be zero. The $150,000 the RIAA is seeking per infringement is thereby nonsensical and inappropriate for use under 504(1) as described above.

Nesson sums up by noting that “a noncommercial use of copyrighted material is presumptively fair and therefore not an infringement.”

“Allowing lawsuits threatening huge statutory damages against noncommercial users utterly destroys that presumption, which means the statute should not be interpreted to permit such result.”

He has a good point here, but it may mean that all copyrighted works can be freely shared so long as there’s no commercial gain, and I’m not sure that’s a conclusion the courts are prepared to make.

Either way, Nesson is as compelling as ever. It’s about time the RIAA met its match.

Stay tuned.

jared@zeropaid.com