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Tenenbaum court hearing begins

By | Published on Tuesday 28 July 2009

So, what could be the finale – or encore if you like – of the Record Industry Association Of America’s self-harming P2P litigation campaign kicked off in a Boston court yesterday. Yes, RIAA v Tenenbaum is go go go.

As previously reported, the US record label trade body sued student Joel Tenenbaum for illegally sharing unlicensed music via a P2P network. Whereas the vast majority of people who were targeted with such litigation quickly agreed to an out of court settlement (normally by paying a few grand in damages and signing a “I’ll never do it again, honest” agreement), Tenenbaum chose to defend himself. Along the way he got the support of the Harvard law department, and in particular Professor Charles Nesson, who is keen to question the central premises of all of the record industry’s legal action against individuals for file-sharing while fighting Tenenbaum’s specific case.

Although the RIAA has now abandoned its litigation rampage against individual file-sharers which, while generally successful on the odd occasion cases got to court, resulted in a zero decline in file-sharing in the US, the trade body – presumably because it still gets a little kick out of a bit of casual self-harm – has said it will see any outstanding P2P file-sharing lawsuits to their conclusion.

Plans to webcast the Tenenbaum trial, proposed by Nesson but opposed by the RIAA, were eventually axed, despite the judge actually hearing the case being in favour of making the hearing publicly accessible over the net.

Presumably the RIAA didn’t want the hearing consumed blow by blow by the pro-P2P community worldwide in case, as often happens in P2P court hearings, technicalities – often of an evidential basis – caused problems for the record industry’s case against Tenenbaum. While the record industry have generally won in court on file-sharing matters, even if their case only falters temporarily because of such technicalities, that isn’t desirable for a trade body keen to portray P2P legal action as a simple black and white interpretation of US copyright law.

My gut feeling is the RIAA will win this one. That individuals sharing unlicensed content via P2P networks amounts to copyright infringement under US law is pretty uncontroversial these days. And that such infringement makes file-sharers liable to damages claims is also pretty accepted, even if the size of some of those damages claims results in sharp intakes of breath among even causal observers.

Either way, the Tenenbaum team suffered a set back last weekend when, just ahead of yesterday’s first hearing, Judge Nancy Gertner ruled that the student’s legal team could not present at all one element of their defence – the argument that P2P file-sharing should be covered by the ‘fair use’ provisions that exist in US copyright law. Team Tenenbaum planned to argue fair use as a viable defence, but the labels argued that the precedent is been pretty clear that in the US (unlike, arguably, in some Southern European jurisdictions) that fair use principles are not relevant in the P2P domain.

Gertner, who, it has to be said, doesn’t come across as particularly keen on the RIAA and their excessively litigious approach, nevertheless ruled that Team Tenenbaum’s plans to bring up fair use sounded just too much like an academic and almost philosophical. She said that had Tenenbaum only shared music files with close friends, or had he only used P2P file-sharing networks in the era before legit iTunes services were readily available, then she’d be willing to consider a fair-use defence. But that is not the case, rather the student’s legal team wanted a more general discussion on limiting the extent of copyrights in the digital age by expanding the fair use doctrine. This court hearing, Gertner ruled, is no place for such a discussion.

As I say, my gut feeling is that the RIAA will probably win this case. Like it or not, US copyright law (and UK copyright law for that matter) says it is illegal to share music over the internet without a content owner’s permission – and that is common sense really. If something seems too good to be true, it normally is, and unlimited access to millions of MP3s without subscription or sign up or advertising or anything is simply too good to be true.

That said, long term readers will know CMU was critical of the RIAA’s overly litigious approach to the P2P challenge from day one, and predicted what the trade body finally realised last year, such litigation results in a net loss (out of court settlements rarely cover legal and administrative fees) and does little to deter other file-sharers. Rather it paints the record industry as a bunch of evil bastards who, frankly, you’d want to steal from.

And whether or not you share the seemingly genuine belief of Tenenbaum’s Harvard team that the US courts have so far interpreted the country’s copyright laws wrong – or, perhaps, US Congress wrote them wrong – Joel’s story (told in his own words on the Guardian website at the link below) demonstrates that not only was the RIAA’s P2P policy wrong, it was also terribly managed – probably because it was being led by clueless legal types who should never be allowed to communicate directly with customers, even the ones you suspect of stealing from you.

www.guardian.co.uk/music/musicblog/2009/jul/27/filesharing-music-industry

While what could be the last big RIAA v music fan P2P court case won’t be webcast, as has become the tradition this year, the defence team are tweeting from the court hearing. Yesterday was dedicated to tedious jury selection, so things should kick off properly today – opening statements are due to take place at 9am Boston time. You can follow it here:

twitter.com/joelfightsback



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