Only question in Tenenbaum music piracy trial is size of fine

BU student admits to illegal music downloading and distribution

With Joel Tenenbaum, the Boston University student accused of music piracy, admitting to a federal jury Thursday that he illegally downloaded songs, the sole question remaining is just how big a fine he will face.

In a ruling Thursday evening, U.S. District Court Judge Nancy Gertner, who is presiding over the case, said the only issues for the jury to consider at this point are "willfulness and damages." The statutes under which he was sued allow for statutory damages of between $750 and $150,000 per willful infringement. Tenenbaum is accused of illegally downloading 30 songs, which means he could get hit with a fine of as much as $4.5 million if the jury applies the maximum penalty.

The RIAA itself has made it clear that it wants the maximum damages it can get in the case. In a motion filed Thursday, the trade body said the jury should disregard Tenenbaum's age at the time he illegally downloaded the music and his claims that he acted without malice.

Tenenbaum's case is only the second Recording Industry Association of America (RIAA) lawsuit to actually go to trial. The first, involving Minnesota native Jammie Thomas-Rasset, ended in June with the jury assessing damages of $1.92 million -- $80,000 for each of the 24 songs she was accused of illegally distributing over the Kazaa file sharing network. The award was nearly nine times the $222,000 fine Thomas-Rasset was assessed in an earlier trial on the same charges. That award had been overturned on technical grounds.

Tenenbaum, 25, was sued for copyright infringement by the RIAA in 2007. His case shot to prominence last fall when Harvard law school professor Charles Nesson said he would represent Tenenbaum in his fight. The RIAA claimed to have found more than 800 illegally downloaded songs in a shared folder on his computer, though the case itself focused on a representative sample of just 30 songs. The trial, which began on Monday in U.S. District Court in Boston, virtually ended when in response to direct questioning by an RIAA lawyer, Tenenbaum admitted that he downloaded and distributed the songs.

"Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing," Gertner ruled later. The statement admits his liability "in the very language of the statute" and does so with respect all 30 of the songs at the center of the case, she said.

Even before Tenenbaum's admission, some following the case had predicted that he had little chance of prevailing, based on a pre-trial ruling by Gertner. In that ruling, Gertner essentially forbade Tenenbaum from asserting a "fair use" defense in his case. That doctrine allows for the use of copyrighted material without permission from the rights holders in some specific circumstances, including transformative use or for nonprofit academic purposes.

In her ruling Monday, Gertner said that Tenenbaum had not provided any "hard proof" to show how his alleged illegal music distribution constituted fair use. She had noted that Tenenbaum's interpretation of fair-use laws was so broad "it would swallow the copyright protections that Congress has created."

Copyright © 2009 IDG Communications, Inc.

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