“Only one thing is impossible for God: To find any sense in any copyright law on the plant” - Mark Twain.

What Are the File Sharing Trials?

The file sharing trials are copyright infringement actions dealing with the distribution and downloading of digital music. The Recording Industry Association of America (RIAA) is the trade organization that supports and promotes the major music companies.  Over the past few years, the RIAA has deployed investigators in cities across North America to track down individuals who pirate digital music, and has brought resulting lawsuits against music fans for sharing music over peer-to-peer networks.

For many people, these cases bring to mind the old saw “but for the grace of God, there go I.” Generally speaking, the RIAA has settled these lawsuits for relatively modest amounts. In a couple of cases, however, the defendants have opted instead to ‘roll the dice’ and go to trial. Under the U.S. Copyright Act, juries have discretion to award damages of anywhere between $750 and $150,000 per copyrighted work, but they are provided with little or no guidance in how damages are to be assessed. As a consequence, these file sharing trials have resulted in jury verdicts for shocking sums of money that would seem to dwarf any actual damages that have actually been suffered by the copyright holders. The fact that these damage awards may be grossly disproportionate to the harm actually incurred has generated constitutional concerns which will likely be tested in the courts in the near future.  In particular, two cases have recently received a significant amount of media attention:

1. Capital Records, Inc. v. Thomas-Rasset, (U.S.D.C. Minn.), Docket 06-1479

In this case, the defendant was a single mother, Jammie Thomas-Rasset. She was accused of downloading and sharing 24 songs over KaZaA in 2005 and was offered the chance to settle the case for $5,000, which she refused. She decided to take her chances at a trial, but she lost…in a big way; the jury awarded damages against her in the sum of $220,000. The Court concluded that the verdict was “unprecedented and oppressive” and “wholly disproportionate to the damages suffered by the Plaintiffs”, and then decided that an error was made in the instructions to the jury and ordered a new trial.

In the second trial, Thomas-Rasset tried a new tactic; she contradicted her previous evidence and blamed her children for the infringement. The result? An even bigger damages award the second time round…to the tune of $1.92 million dollars! Even the plaintiff’s lawyers were stunned. The judgment was entered on June 19, 2009, and Thomas-Rasset has now asked the court to either reduce the statutory damage award or order yet a third trial.

2.  Sony BMG Music Entertainment et al. v. Joel Tenenbaum (U.S.D.C. Mass.), Docket No. 03-11661

The defendant, Joel Tenenbaum, was a college sophomore who was accused of using file-sharing programs like KaZaA to download and distribute 30 copyrighted songs. Tenenbaum’s file sharing was not for profit; it was for his own private enjoyment and that of his friends. He had downloaded songs, but not entire albums of music, and he did not make any changes to the music (i.e., turn them into his own creative work). Unfortunately, he had continued to file share notwithstanding changes in the case law which made it clear that his conduct was not protected, and after digital music was lawfully available (the iTunes Music Store debuted in April 2003, approximately 15 months before Tenenbaum’s computer was detected on the Kazaa network).

Tenenbaum, initially unrepresented, was later represented by Professor Charles Nesson, a man who is widely regarded as one of the most brilliant, if eccentric, professors at Harvard Law School.  Yet his litigation tactics were “unconventional” to say the least. To illustrate, Nesson tape-recorded a telephone conference with a federal judge and opposing counsel, and then – after US District Judge Nancy Gertner of Boston told him to shut it off – he posted the recording on his blog and featured it in a take-home exam on evidence for his students. On numerous other occasions, he recorded conversations with his opposing counsel without their knowledge or consent, and even posted portions of the depositions on the internet in direct contravention of Judge Gertner’s express instructions.

Nesson also posted online his internal email discussions with other academics on the merits of the case who he had hoped to call as expert witnesses for the defense but who rejected his legal theory that Joel Tenenbaum had the right to download songs under the fair use doctrine of copyright law.  He is quoted by the Boston Globe as saying:

Our strategy in this case is one of openness. Joel committed no crime. He’s ashamed of nothing that he’s done. He has no need for attorney-client privilege. He has no need for secrecy. He wishes he could claim privacy, but that has been grievously violated [by the recording industry]. . . . It’s our strategy to litigate this case open.

When the action was on the eve of trial and after discoveries had closed, almost as an afterthought, Nesson had amended the defence and tried to argue that Tenenbaum’s file sharing constituted a “fair use” under the Copyright Act (a defence that will be explained in more detail in a post later this week). Over the record companies’ strenuous objection, the Court allowed the fair use defense to be added at the eleventh hour. The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the internet, did everything in its power to permit Tenenbaum to make his best case for fair use. The plaintiff record companies then brought a motion for summary judgment - that is, a preliminary determination by the Court that there were no factual issues in dispute with respect to the fair defence that required a trial - and won on Tenenbaum’s purported fair use defense. The matter then went to a trial and Tenenbaum admitted his peer to peer use from the stand, resulting in a directed verdict on liability and leaving only the question of statutory damages in the hands of the jury. Their answer: $675,000 (or $22,500 per song). The judgment was entered on December 7, 2009 and can be viewed here.

Stay Tuned for More Posts on Copyright and Fair Use!

As mentioned above, we will canvass the “Fair Use” defense to copyright infringement and  Judge Gertner’s decision in Tenenbuam later this week.  In the meanwhile, Professor Eric Faden of Bucknell University has created a brilliant account of copyright principles delivered through the words of…Disney! Ah, beautiful irony. The clip is comprised entirely of copied and pasted copyrighted works, but does not infringe copyright law.