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.

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.

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.

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.

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.

$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.

Charlie Nesson & The Emperor’s New Clothes

The much-anticipated trial in the RIAA music-downloading lawsuit against BU student Joel Tenenbaum started Monday in federal court in Boston before Judge Nancy Gertner.  Tenenbaum is represented pro bono by “Billion-Dollar Charlie” Nesson of Harvard Law School, assisted by a team of law students.  From the start Nesson has appeared more interested in the spectacle of doing battle with the RIAA than in counseling his client.   His challenge to the constitutionality of the RIAA’s claims went nowhere, the First Circuit shot down his motion to stream video of the proceedings (an unfortunate ruling), Judge Gertner tossed his proposed fair use defense on the eve of trial (fair use was unsuccessful in the Napster, MyMP3, Grokster, and all other music-sharing cases in which it was raised and there is no reason to believe the court should have allowed it here), and Nesson’s opening statement relied on the theory that “all the kids are downloading music–that’s just what kids do!”  His approach to the case has been inexplicable, if bizarrely entertaining.

Then Joel Tenenbaum took the stand yesterday and admitted infringing the plaintiff’s copyrights by downloading the music files at issue.  To put it more simply, he admitted liability for copyright infringement.  Last night Judge Gertner granted the RIAA’s motion for a directed verdict, a 2xz4 upside the defense team’s head.  The only thing left to try is the amount of the RIAA’s damages.   Maybe Nesson thinks he will convince the jury to award $1 for each incident of infringement.  If he does I will give him kudos for brilliant lawyering.

RIAA Wins

Minnesota music file-sharing defendant Jammie Thomas-Rasset yesterday completed her new copyright infringement trial.  Unfortunately the result was about eight times worse than October 2007’s trial, in which a jury found her liable and awarded the RIAA damages of about $240k.  This time the jury found her liable for infringing 24 song copyrights and awarded the RIAA damages of $80k per son, or $1.92 million.  Last year’s verdict, Thomas-Rasset’s appeal, the trial judge’s subsequent criticism of his pro-RIAA jury instructions that making copyrighted songs available for sharing constituted infringement, and the just-completed retrial received considerable notice, if you pay attention to these things.  (See prior posts here, here, here, here, here, and here.)  Thomas-Rasset’s response to the damage award was “good luck trying to get it from me . . . it’s like squeezing blood from a turnip.”  The RIAA reiterated its willingness to settle, an offer on which Thomas-Rasset has passed.

Ars Technica reports (see first linked article) there were ample grounds for the jury’s verdict:

The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer’s Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her “tereastarr” username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Something in the evidence turned the jurors against Thomas-Rasset.  In 2007 she lost big.  This week she lost huge.  She says she plans an appeal, a stance aided by her pro-bono counsel.  I don’t know what grounds she would have for appeal.  Copyright infringement law is not on the side of file-sharers, no matter how many Harvard-trained lawyers they have.  I agree the law needs changing, and that for many the RIAA is a particulary unsympathetic plaintiff, but if Iwere representing a file-sharing defendant I would think deeply about the reasons for the jury’s decision.

Pirate Bay on Trial

Torrent clearing-house Pirate Bay is on trial in Sweden for copyright theft.  If convicted its owners could be imprisoned for up to two years and fined $145k. The plaintiffs, producers of movies, music, and video games, are also seeking over 10 million Euros in damages.  Pirate Bay’s defense is that it does not host any copyright-protected content on its servers and thus cannot have committed copyright theft.  Echoing the U.S. Supreme Court’s holding in the Sony decision Pirate Bay’s counsel said “It is legal to offer a service that can be used in both a legal and illegal way.”

Pirate Bay has gotten the best of the case so far.  On the second day of trial prosecutors dropped “all charges relating to ‘assisting copyright infringement,'” which were the most serious charges in the case.  Remaining are charges of “assisting making available copyrighted content.”  The infringement charges were dropped, according to the linked article in The Guardian, because prosecutors were “unable to prove in court that illegally distributed files had used The Pirate Bay site.”  Huh?  In other words, the prosecution brought its copyright infringement case without evidence of copyright infringement?

That’s embarrassing.  A co-defendant said the prosecutor didn’t understand the Pirate Bay technology.  Not a good day at the office.

Dealing with the evisceration of their case the copyright owners are putting on a brave face.  The article reports that the prosecution claimed “that dropping the charges . . . would simplify the case against The Pirate Bay.”  That doesn’t even pass the straight-face test.  Music company legal counsel said “[i]t’s a largely technical issue. It changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay. In fact it simplifies the prosecutor’s case by allowing him to focus on the main issue, which is the making available of copyrighted works.”

I know nothing about Swedish copyright law.  Under U.S. law the “making available” theory is weak without proof of actual distribution of a copyright work, as posts here have noted in connection with the RIAA’s case against Jammie Thomas and others decided in the past year. We’ll see how it fares in Sweden.