Setback for music pirate will be a footnote

Monday, May 21, 2012

The U.S. Supreme Court today decided not to review a jury award of $675,000 against a college student who distributed 30 songs in violation of copyright law.

The Court declined to review the case in which a U.S. district judge in Boston had reduced the award to $67,500, but the original jury verdict was reinstated by an appellate court.

In the long run, this case will be a footnote, but for now it serves as a high-profile reminder of the ongoing tension between the free dissemination of content and the need to protect the property rights of creators.

Joel Tenenbaum was a 20-year-old college student in 2003 when he received a letter from the Recording Industry Association of America demanding that he pay $3,500 for illegally posting music files on Kazaa. The peer-to-peer network permitted wide distribution of the songs without any compensation to the copyright holders.

As it turned out, the $3,500 would have been a good investment. It’s been estimated that the recording industry sent similar letters to more than 30,000 people and filed suits against more than 12,000. Of all those cases, only two went to a jury trial.

This was never a First Amendment case. Any free-speech considerations disappeared when the trial judge refused to allow Tenenbaum to mount a fair-use defense. Fair use is an exception to the copyright law, permitting the use of  copyrighted material in limited ways that don’t harm the marketability of the original content. Tenenbaum’s distribution was the exact opposite: taking the songs in their entirety and undercutting sales.

Still, similar cases are unlikely. The recording industry has essentially abandoned the strategy of suing consumers because of the public-relations beating it took. Even with the law on their side, record companies looked like bullies when they sued young and low-income consumers for large sums of money. Instead, the RIAA has adopted a strategy of working with Internet service providers to identify illegal file-sharing and to cut off service to offenders.

In the eight years since Tenenbaum first received notice of his prosecution, much has changed. Social media have exploded, and sharing, legal and otherwise, has grown dramatically. YouTube is full of videos posted by users who have no rights to the material — and often say so. Though cease-and-desist letters are still common, some copyright holders seem to ignore unauthorized posts, seeing no point or profit in making a federal case out of it.

That comes as no comfort, of course, to Joel Tenenbaum. When Tenenbaum posted the work of Green Day, Red Hot Chili Peppers, Eminem, the Beastie Boys, Rage Against the Machine and others without permission, he inadvertently authored a cautionary tale, as well as the world’s most expensive playlist.

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