Q&A: Tenenbaum says he faces bankruptcy after $675K piracy verdict

'Reality' and 'reasonableness' are needed with RIAA lawsuits, says student

In a major victory for the Recording Industry Association of America (RIAA), a federal jury one week ago fined Boston University student Joel Tenenbaum $675,000 for illegally downloading and distributing 30 copyrighted songs.

Tenenbaum's case is only the second RIAA music piracy lawsuit to go to trial. The first ended in June with the jury in that case assessing damages of $1.92 million against Minnesota native Jammie Thomas-Rasset for copyright infringement. In an interview, Tenenbaum -- now something of a cause celebre among those opposed to the RIAA campaign -- talked about his case, the size of the fine against him and his attempts to get the "RIAA juggernaut" off his back.

Excerpts from the interview follow:

What was your reaction to the verdict? I was disappointed, but not surprised. I saw how the trial had gone. The judge was very successful in convincing the jury that this law passed in 1999 should be applied to me. My legal team and I didn't think this law was ever meant for non-commercial downloaders. But the judge succeeded in convincing the jury ... that for each song they were required to (fine an amount) between $750 and $150,000. So, given the jury instructions, it seemed pretty inevitable that I would get hit with some completely unrealistic fine.

So are you going to pay? Yes I am going to pay up. I'll flip the couch and find, what would it be, 60 million pennies?

What then is the next step? If (the fine) stays in the range of something completely crazy, which I can't pay, I have no choice but to declare bankruptcy. We have the option of appealing to the judge to adjust the damages, which apparently she [has] within her power to do. On top of that, we can appeal to the next court up. And I think we have the basis for that. We were denied our 'fair use' defense. The judge basically said, 'No this isn't the defense the jury should be allowed to hear.' We think it was a mistake in justice and fairness and a mistake in law.

Didn't the judge rule that accepting your definition of fair use would basically give copyright owners no protection at all? Well, I disagree with that. The judge is better versed than I am in this, better versed in the law and has been on the bench for some years. So I don't want to go out and say something like, 'Oh, she is so wrong.' But I do think that it was a mistake, both in fairness and in law. I think it was partially an issue of plaintiffs citing a whole bunch of case law showing that fair use had never been decided by a jury. I think fair use is a defense the jury should at least have heard and have had a chance to decide upon for themselves.

Why didn't you settle when you had a chance? I did try to settle when they sent the first letter to me saying, 'We have reasonable belief you have infringed our copyright. Call this 1.800 number to settle.' I called the number up and we went back and forth. I think they wanted $3,000. I sent them a money order for $500 which came back with a letter essentially saying, 'Call back when you really want to talk.' I said I couldn't afford more. Then after not hearing from them for a couple of years, this formal complaint arrives at my door in the form of a stack of pages -- maybe 50 pages -- thick, written in legal-ease. So I came to court and talked to the plaintiffs and I offered them $5,250 at one point and they came back to me and doubled that. I mean I didn't have that. And even if I did, it just seemed wrong to just submit to that without any formal proof, without going to court.

I mean we have in America this idealistic view of our judicial system that it will see both sides of a story. So I got to trial and now I have this huge verdict against me.

Are you surprised that such a large verdict was awarded by a jury of your peers? I guess what you are asking is how can a jury of 10 ordinary folks sit down and nonchalantly say, 'Yeah, this kid owes $675,000.' There is a famous experiment (the Milgram experiment) in which they have volunteers come in and apparently someone who looks like some kind of an authority figure tells the volunteers to turn a knob. They are told this knob will inflict pain on a subject. The majority of people had no problem turning that knob even if they saw the results. The take home message on that was people aren't terribly conflicted about carrying out what they believe is their proper job when they have been instructed by someone in a position of authority what it is. So, here came this judge, she sat them down and said this law applies here and for each song you must apply $750 to $150,000 [in fines]. If you are a juror, you think doing anything other than that is beyond your purview.

You have had a lot of support. But there are many who think you deserve to pay for stealing music. This is an issue that is being debated and I am glad that an open honest debate can be sparked out of this. I am not saying file sharing is always good or always beneficial. I am not saying that file sharing is wrong or always detrimental. I am just saying file sharing is, and always will be. And I think that it's necessary, given this RIAA campaign, for us a society to step back, look at the issue and see it with a certain sense of reality and reasonableness. A $700,000 fine is neither.

Copyright © 2009 IDG Communications, Inc.

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