File-Sharing Litigation Groundhog Day

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.

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LimeWire Shut Down

“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.

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RIAA Damages Reduced

Jammie Thomas-Rassert of Minnesota was the first defendant in an RIAA music-piracy lawsuit to go to trial.  She lost big, appealed, the trial judge decided he mis-instructed the jury on the law and ordered a new trial, she lost again, although even bigger–$1.92 million–and appealed again.   A federal judge just reduced the “shocking” damage award to $54,000.  Good news, perhaps, for BU’s own Joel Tennenbaum and the $675,000 damage award imposed by a jury last summer.

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Tenenbaum Postscript

From Ars Technica:  Massachusetts federal district court judge Nancy Gertner, who presided in the RIAA file-sharing trial of Boston University graduate student Joel Tenenbaum, this week entered default judgments in some file-sharing cases.  Judge Gertner awarded the RIAA statutory damages of $750 per downloaded song, or about $7,500 for each of the defendants who failed to contest the RIAA’s claims. In the Tenenbaum case the jury awarded the RIAA damages of $22,500 per downloaded song, a total of $675,000.   We always say jury trials are a crap shoot.  Tenenbaum’s jury was obviously unsympathetic to him, his counsel, and his argument–such as it was.  Using Gertner’s recent calculation had he failed to contest the RIAA’s claim he would have been ordered to pay damages of $22,500 (30 songs * $750).   And, of course, he could have settled for something in the range of $3-4,000.

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More on the Tenenbaum Judgment

Admired in Class, a Scholar Falters in Court covers the response to Charlie Nesson’s handling of the Tenenbaum file-sharing trial.  A sample:

It was a stinging defeat for Professor Nesson, and to many in the legal community, it seemed to be a moment when an eccentric scholar’s devotion to a soaring vision blinded him to the practical realities of winning a legal case. Taking on a lawsuit that his own allies warned was ill-advised, Professor Nesson acted in ways that many observers found bizarre and even harmful to the case.

The article reports that Larry Lessig advised Nesson in a personal email that he “[had] serious reservations about the suit and counseled against Professor Nesson’s plan to argue that Mr. Tenenbaum had made ‘fair use’ of the music . . . It would be wrong, Professor Lessig wrote, to ‘pretend’ that ‘fair use excuses what he did.’  ‘It doesn’t,’  he added.”  My undergraduate Internet law students would have told him the same thing.  They would have counseled Joel Tenenbaum to settle.  Sometimes the more you know, the dumber you are.

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$675k

The federal court jury deliberated for three hours last Friday before deciding that BU graduate student Joel Tenenbaum owes $675,000 in damages, or $22,500 for each of 30 songs he admitted to downloading.  The evidence showed an unrepentant Tenenbaum continued to download music despite repeated warnings of escalating seriousness; he continued to download music after this lawsuit was filed.  Tenenbaum was lucky; the damage award could have been much higher, up to $150,000 per song.

Why did he choose to try this case?  The facts and law were totally against him.  He is not a compelling poster boy for the unfairness of copyright law.  He admitted on the stand that he lied in a deposition when he denied downloading the contested files.  The court did not allow him to present a fair use defense, and rightly so despite Charlie Nesson’s protestations.  There is no factual basis to argue fair use in this case, and there is nothing in the facts that would encourage a court to read fair use more broadly.   He could have settled for $3,000-$4,000 and put the matter behind him.  Now he must content with a six-figure damage award that will undoubtedly be upheld if appealed, and that he obviously cannot pay.  He will have no choice but to file for bankruptcy, a financial millstone at the start of his post-graduate career.   I hope his lawyers explained the likelihood of this outcome long before trial.  They failed utterly in their obligations if they did not.

Stupid, stupid, stupid.

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