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Update: Judge affirms $675k verdict in RIAA music piracy case

Judge rips defense, 'implores' Congress to amend copyright law to recognize the realities of file sharing

December 7, 2009 03:58 PM ET

Computerworld - A federal judge in Boston today formally signed off on a $675,000 fine that a jury assessed against Boston University doctoral student Joel Tenenbaum for illegally sharing 30 copyrighted songs.

But in an unusual decision, U.S. District Court Judge Nancy Gertner expressed "very, very" deep concerns at the "astronomical penalties" available to music companies under copyright laws. Gertner said the court would have been willing to consider Tenenbaum's fair use defense in the case but concluded that the manner in which the arguments were presented by the defense counsel made it all but impossible for her to do so.

"Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum's defense mounted a broadside attack that would excuse all file sharing for private enjoyment," the judge wrote in a 38-page decision. Such a broad definition of fair use would "swallow" all copyright protections, Gertner said.

Her ruling means Tenenbaum will be required to pay $112,500 to Sony BMG Music Entertainment for five songs, another $250,000 to Warner Bros. Records Inc. for sharing 10 songs, $45,000 to Arista Records for two songs and $292,500 to UMG Recordings, Inc. for 13 sound recordings.

A hearing on the constitutionality of the size of the damages awarded in the case is scheduled for Jan. 5. Tenenbaum has previously stated that he would be forced to declare bankruptcy if he is required to pay the fine.

Tenenbaum was found liable of illegal music sharing in July. He had been accused by the Recording Industry Association of America (RIAA), which represents the major music labels, of illegally downloading and sharing more than 800 songs. The case, however, focused on a representative sample of 30 of those songs.

The RIAA sued Tenenbaum in 2007. The case shot to prominence last year when Harvard Law School professor Charles Nesson announced that he would represent Tenenbaum in his fight against the RIAA.

The case is only the second RIAA lawsuit to go to trial. The previous case, involving Jammie Thomas Rasset, a single mother in Minnesota, ended with a federal jury awarding six music companies damages in excess of $1.9 million.

In Tenenbaum's case, the damages were assessed after he admitted to illegally downloading the contested songs during a brief jury trial in July. Before the trial had even begun, Gertner had forbidden Tenenbaum from asserting a "fair use" defense in the case.

The fair use doctrine allows for the use of copyrighted material without permission from the rights holders in certain circumstances, including nonprofit academic purposes, or if the copyrighted work is used in a different way for a limited purpose such as to comment or criticize something.

In her ruling today, Gertner blamed Nesson's handling of the case for her decision while "imploring" Congress to amend copyright statutes to reflect the realities of file-sharing.

Under other circumstances, the court would have been willing to consider a fair-use defense, Gertner noted. For example, the court would have been willing to hear a fair-use defense in cases where music might have been downloaded for the purposes of sampling the songs before buying them or "space-shifting to store purchased music," she said. Likewise, someone who had indulged in P2P file-sharing before music was available for online downloads might have been able to claim a fair-use defense, she said.

"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," she said. But Tenenbaum "would have none of it," and instead tried to assert a much more sweeping fair-use defense that was meaningless, she said.

Speaking with Computerworld today, Tenenbaum asserted that he is continuing to pursue "every option possible" to get the verdict overturned.

"Obviously I don't believe $675,000 is a just verdict," Tenenbaum said. He expressed satisfaction that the judge overturned a separate motion filed by the RIAA seeking to prevent Tenenbaum from "promoting" the use of the Internet for music downloading purposes.

"They wanted to restrict my free speech. I am thrilled at the court's decision." he said.

Ray Beckerman, a New York attorney who has represented individuals in numerous RIAA lawsuits, called the judge's decision surprising. "She ruled before the trial that the fair-use doctrine was gone. It's unusual to write a decision when none is called for," Beckerman said.

Though Gertner's decision expresses a clear stand on how her court would have treated a fair-use defense, it does not set a precedent for other courts, he said. "When a judge expresses their opinion on things that are not necessary to a decision it does not have any binding, precedential value," he said. "It is as if someone just gave their ideas," he said.

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