Legal Top Stories

Judge reaffirms Tenenbaum ruling, but gives tips to any appeal lawyer

By | Published on Tuesday 8 December 2009

The judge who heard what may be the last of the big old school P2P file-sharer court cases has reconfirmed her ruling, ordering student Joel Tenenbaum to pay the US record industry $675,000 in damages. I’m not sure why the ruling needed reaffirming, given we already know Tenenbaum will appeal the decision and, if unsuccessful at appeal, plans to declare himself bankrupt. But there you have it. There were, however, some interesting points raised in this latest hearing regarding Master Tenenbaum.

As much previously reported, Tenenbaum was one of the file-sharing kids sued by the Recording Industry Association Of America during their onslaught of music-fan-targeting P2P litigation. He was unusual in not agreeing to settle, despite ultimately admitting to sharing unlicensed music via a P2P network, and instead he let the case go to court where he was defended by Harvard law professor Charles Nesson.

The prof promised a strong defence, some innovative debate around the status of copyright in the digital age, and a bloody nose for the arrogant record industry. In the end he presented some pretty lacklustre arguments, most of which had been heard and rejected by the US courts before, meaning few were surprised when Tenenbaum lost the battle.

Even the judge who heard the case – Judge Nancy Gertner – strongly implied her frustration at just how shit Nesson’s defence had proven to be. She’d indicated ahead of the trial that she had little sympathy with the RIAA, who she considered to be overly pushy, but Nesson’s defence was so weak even a slight judicial bias in the defendant’s favour wasn’t going to help.

In a memo publishing alongside yesterday’s hearing, Gertner reaffirmed her dislike for the way major record companies have stamped their feet all over kids sharing music on the net, and gave some handy hints for anyone planning on defending Tenenbaum on appeal as to arguments she’d find compelling for letting a confessed file-sharer off infringement liabilities, mainly encouraging a wider debate of the copyright law concept of ‘fair use’ in the digital age.

Gertner wrote: “As it made clear previously, the court was prepared to consider a more expansive fair use argument than other courts have credited – perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file-sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defence”.

Back to now, though, and in addition to the damages we all know Tenenbaum will never pay, Gertner also ordered the student to destroy any digital music files he obtained illegally. She refused, though, to censor Tenenbaum for speaking about or even supporting file-sharing. The RIAA is particularly pissed off that someone has made all the tracks the student was sued for file-sharing available via a BitTorrent stream, promoted on The Pirate Bay as ‘The $675,000 Mixtape’. They accused Tenenbaum of promoting that mixtape and asked the judge to tell him to stop doing so. But Gertner said she had neither the inclination nor the authority to instruct the defendant as to if and how he discussed said BitTorrent stream.



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