Categorize this as dog-bites-man news but since I’ve posted about the Tenenbaum case many times ($675k, More on Tenenbaum, More on the Tenenbaum Judgment, Tenenbaum Postscript, $.70 a Song, and Court Reinstates Tenenbaum Damage Award), and discuss it in class I’ll note that the U.S. Supreme Court, without comment, decided not to hear Joel Tenenbaum’s appeal in his music-piracy case. This is not the end of the case; the federal district court in Boston must decide whether to leave standing the jury’s award of $675,000 in damages to the recording industry.
This is a strange case whose longevity (it began in 2007) reflects its status as an ideological battleground over music piracy–however poorly chosen a field of battle it offers to file-sharing’s true believers.
Among the interesting legal issues raised by the U.S. Justice Department’s shutdown of Megaupload.com and criminal prosecution of its managers is whether those who used the site to store non copyright-infringing works will be able to retrieve their data. The government claims Megaupload’s legitimate data-transfer service was a front for systematic copyright-infringement, but there’s no claim that those engaged in legitimate uses were benefiting from or knowingly contributing to unlawful activity. So while the government prepares its case those legitimate users hang in limbo, unable to retrieve their data. The Electronic Frontier Foundation, with the support of Carpathia Hosting, is gathering information from those affected through megaretrieval.com and may initiate legal action to hasten the effort.
*not me personally.
It’s been a consequential week for the Stop Online Piracy Act (SOPA) and the Protect IP Act, the two controversial pieces of copyright-protected legislation pending in Congress. I’ve posted about these bills in recent months but I’ve not attempted to post the play-by-play culminating in last week’s coordinated online protest against the bills. Now that the bills have stalled–the New York Times reports “the pressures of an election year make action this year unlikely”–over the next few days I want to take time to compare the bills’ stated purposes with their methods for achieving those purposes, and separate fact and myth from arguments of both the bills’ proponents and its opponents. These particular bills may be gone for good but the issues they address and, as important, the music, motion picture, and publishing industry lobbying effort that pushed for their creation are still patrolling the House and Senate.
The First Circuit reinstated the jury’s $675,000 damage award to Sony BMG in its copyright infringement case against music-sharer Joel Tenenbaum, but the decision did not reach the merits of District Court Judge Nancy Gertner’s holding that the original award was so excessive as to violate Tenenbaum’s Constitutional right to due process. Instead the court ruled that before addressing the Constitutional issue Gertner should have used her power of remittur (“the procedural process by which a verdict of the jury is diminished by subtraction,” Black’s Law Dictionary, 5th Ed.*) to reduce the award, which would have given Sony the choice either to accept the reduced award or seek a new trial. Sony wins this round with a warning that the court or Congress may drop the other shoe.
*Old I know–it’s the edition I bought in law school. The current edition is the 9th.
It was not down for long: LimeWire has been re-engineered, re-named LimeWire Pirate Edition, and re-released, less than a month after a federal court ordered an end to its distribution.
RIAA file-sharing punching bag Jammie Thomas-Rasset lost for the third time, a Minnesota jury finding her liable on Wednesday for copyright infringement and ordering that she pay damages of $1.5 million. A 2007 jury trial resulted in a $222,000 RIAA damage award against Thomas-Rasset. She appealed, there was a retrial in 2009, and she lost again: liability for copyright infringement and $1.92 million in damages to the RIAA. The trial judge reduced that “monstrous and shocking” award to $54,000. The RIAA offered to settle for $25,000, Thomas-Rasset refused, and the RIAA tried its case again, which brings us back to Wednesday’s verdict. Thomas-Rasset’s counsel said she would appeal–to the federal judge who reduced the $1.92 million award.
“If file-sharing copyrighted songs is against the law, why is LimeWire still operating?” Students have asked this question countless times, and countless times I’ve answered it. There are no copyright police; copyright holders must pursue civil lawsuits to remedy claims of copyright infringement; they must prove their claims in court; civil litigation is slow. Some imagine that all a copyright holder need do to shut down a file-sharing site is to show the court a copy of the decision shutting down Napster. It’s not that simple, efficient, quick, or inexpensive.
Students can discard the question because yesterday a federal judge ordered LimeWire “to disable [its] ‘searching, downloading, uploading, file trading and/or file distribution functionality.'” This injunction does not end file-sharing, of course. It moves the RIAA’s focus to its next litigation target.