Student facing $675k music piracy fine hopeful award will be lowered

Computerworld - A federal judge's decision last week to reduce damages in a music piracy case in Minnesota has elicited cautious optimism from Boston University student Joel Tenenbaum, who is facing a $675,000 fine in a similar case.

In e-mailed comments to Computerworld, Tenenbaum said he was "grateful for the refuge" provided by U.S. District Court Judge Michael Davis' ruling last week involving Minnesota native Jammie Thomas-Rasset.

Thomas-Rasset was found liable for illegally downloading and distributing 24 copyrighted songs last June and was ordered by a federal jury to pay $1.92 million in damages to six music labels. Davis last week lowered that amount to $54,000, calling it a "significant and harsh" award but one that was no longer as "monstrous and shocking" as the original award had been.

Tenenbaum today said he is hopeful that last week's ruling will prompt the judge hearing his own case to consider adjusting the damages. "We feel we have a bit more ammunition in the motion we filed" to have the damages reduced, Tenenbaum said. "That being said, these things are hard to predict," he added.

Tenenbaum, a postdoctoral student at BU, was found liable last July for illegally downloading and distributing 30 copyrighted songs. He was ordered to pay $22,500 per song by a federal jury in Boston.

The Recording Industry Association of America (RIAA), which sued Tenenbaum on behalf of four music labels, claimed to have found more than 800 illegally downloaded songs in a shared folder on Tenenbaum's computer. The case, however, was based on a representative sample of 30 of those songs.

Tenenbaum's lawyer, Charles Nesson, a professor at Harvard Law School, challenged both the size of the fine and the constitutionality of the copyright laws under which it was imposed. Nesson argued that the copyright statutes under which Tenenbaum was sued were meant for criminal violations, not civil cases.

Tenenbaum's case is only the second RIAA music piracy lawsuit to go to trial; thousands of others have been settled out of court over the past few years. The only other case to be tried in court is the one involving Thomas-Rasset.

Davis' decision to lower damages in that case is cause for optimism, Tenenbaum said. "Knowing that a federal judge has seen an adjustment of damages as not only a just action, but one grounded in legal principle," is encouraging, he said.

At the same time, even the reduced amount of $54,000 is likely to be as unaffordable for Thomas-Rasset as the original fine had been, Tenenbaum said. "It's still egregiously excessive, even had the RIAA proven any actual damages," he said.

In his own case, even if the award were reduced by 10 times to just over $67,000, it would still be a "bankrupting judgment," Tenenbaum said. Such a fine would be "a far cry" from the 99 cents it would have cost to legally download each song, he said. The "arbitrary" size of the jury award stems from the fact that the copyright law it was based on was meant to be applied to commercial copyright infringers, not individuals such as Thomas-Rasset and himself, Tenenbaum said.

The RIAA, meanwhile, has argued that damages should be based not on the price of legally purchasing the songs, but on the potential lost sales resulting from the illegal online distribution of copyrighted songs.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, send e-mail to jvijayan@computerworld.com or subscribe to Jaikumar's RSS feed .

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