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Bad Data: A File-Sharing Fiasco
(This column is an update on a case I originally wrote about for WireTap on February 25, 2009.)
On July 31, following a lawsuit by the Recording Industry Association of America (RIAA), a jury ordered Boston University grad student Joel Tenenbaum to pay $675,000 for uploading 30 songs to the internet. That's $22,500 per song, or approximately 4,000 times the cost of the three CDs that would have held them. Although clearly a problem for Tenenbaum, who is declaring bankruptcy, industry representatives are cheering this "message" to the public. But what message is really being sent?
Tenenbaum's legal team was fighting not only for his individual case but to redefine the issues involved in file-sharing. Unfortunately, Judge Nancy Gertner didn't want to do this in court or with a jury, and narrowly limited what the jury was allowed to consider. Most dramatically, eight hours before the trial began, Judge Gertner ruled that Team Tenenbaum couldn't raise the issue of fair use, a central argument in their defense.
The fair use defense could have reduced or eliminated damages by addressing concerns about the harms or benefits of his actions. Without the chance to hear those arguments, the jury could only discuss what the damages should be.
The Fight for Fair Use
Another controversial development was Charles Nesson's failed fight to webcast the trial. The Harvard Law School professor knew that webcasting would have allowed the public to witness an important battle for the meaning and scope of law we all have to live with.
In theory, public awareness of what people fight over in court could benefit all sides. But reality may be biased: the RIAA might be right to fight webcasting, since people would see just how little the RIAA respects the public interest.
For example, we could have seen the lead RIAA lawyer, Matt Oppenheim, leap to his feet to prevent a demonstration of video downloading, which would have illustrated fair use in the noncommercial, taxpayer-funded public service context of a court case.
Maybe the RIAA thought witnessing fair use was some kind of gateway drug -- after one experience, people would start building torrent servers in their basements or running for Congress as a member of the Pirate Party. More likely, though, the RIAA resisted webcasting to avoid public scrutiny of their unpleasant courtroom tactics.
The Punishment Is the Trial
If we had witnessed the courtroom battle, we might also have seen how going up against a big corporation can be a punishment in itself. The RIAA confiscated Tenenbaum's computer and examined every file. How would you like it if a hostile person who wants to make you look bad could sift through your whole hard drive?
The RIAA also interviewed potential witnesses for up to 13 hours -- family and other people who wanted to speak on his behalf had to miss work and other obligations if they wanted to participate. Tenenbaum had to hire lawyers in three states to deal with the RIAA's many-pronged attacks.
What happens to justice when you can't afford to defend yourself? Corporations not only have their claws in Congress, but the costs of court cases mean that corporations easily dominate the legal process, too. This affects how law is interpreted, changing it over time.
Corporations not only have their claws in Congress, but the costs of court cases mean that corporations easily dominate the legal process, too.
Of course, anyone who has followed the civil rights movement, the fight to decriminalize marijuana or patterns of law enforcement knows laws change over time. Sometimes they change for the better, sometimes for the worse. But changes depend a great deal on who gets to be heard in court -- that influences the kind of testimony that goes down in the books.
Learning the social context for lawbreaking tells you, say, whether someone is trespassing or having a sit-in. Ignoring the social context of lawbreaking generally leads to bad law as well as more lawbreaking. But who can provide the social context? In copyright law, most voices in court and in Congress have been the same over the years, and the results have benefited big corporations like Disney and the RIAA.
It's time for courts to hear new voices on what matters about music.
Nesson's failed struggle to bring in DJ/blogger/ethnomusicologist Wayne Marshall as an expert witness typifies how courts exclude those who represent the public interest and can provide critical social context. Copyright law is not only for the industry, or even for artists, it is for society as a whole. People who study music in social context collect evidence about how music matters to society. That's much-needed information about what is in the public interest -- information beyond abstract legal principles and the private interests of industry players. Unfortunately, the court decided that evidence was irrelevant.
However, there is one issue Judge Gertner has said she will take on: statutory damages.
Unlike some countries, the U.S. has laws specifically naming what people should pay when losing their case. These are "statutory damages" -- sort of like mandatory sentencing for file-sharing -- and they currently range from $750-$150,0000 per song.
It's a bit mysterious how this jury arrived at $22,500 in the Tenenbaum case. Actual harm didn't enter into the jury's decision. Could it be some moral judgment against uploaders? That would be odd, considering the vast numbers of file-sharers out there.
Another likely factor is that people given any range of numbers might bargain towards the middle, since, as one juror said later in an interview, that "seems fair." However, since the law currently defines a high and wide range, anywhere in the middle is still pretty harsh.
$22,000 per song seems excessive to many, but also arbitrarily lower than the $80,000 per song decided on in the Jammie Thomas-Rasset case. Both amounts subvert the original intent of statutory damages.
Originally, these damages related to actual harm caused to copyright owners. Later, judges decided they could be increased to punish bad behavior, but "badness" was connected to someone profiting directly from infringement. The second is clearly not true for Tenenbaum. As for damages, research on the actual harms of file-sharing is inconclusive.
A study published in the Journal of Political Economy suggests that file-sharing has no direct effect on sales. In fact, it can even increase money for artists overall. Artists, including 50 Cent, are saying file-sharing doesn't hurt their sales or career, although one University of Texas at Dallas report contradicts that notion.
Even without taking sides, the simple existence of a range of contradictory opinions, experiences and evidence makes it hard to imagine a general rule doing justice to all.
Courts and Congress have diverged from the original intent of damages, and "high damages deter file-sharing" is the new mantra. But what constitutes a deterrence remains unclear: damages for copyright infringement have ranged all over the map, corresponding neither to bad behavior nor material harm.
Additionally, deterrence hasn't worked. The RIAA itself recently announced it was stopping individual lawsuits, which makes this verdict (and the 100 others apparently still in the pipeline) all the more unfair. If Tenenbaum had engaged in file-sharing after the RIAA changed their policy, would it mean that he was less guilty?
This decision tramples individual due process rights, punishing one person and handing a plaintiff a free gift of thousands of dollars.
Depressingly, the Department of Justice just stated that they find even the $1.92 million fine for Jammie Thomas-Rasset to be constitutional. Although it would be up to a court (not the DoJ) to decide this, it's not a hopeful sign.
A Messy Aftermath
It's hard to say what will happen next. Team Tenenbaum is appealing the decision and hopes for a constitutional challenge. Meanwhile, some people will surely be more wary of file-sharing, including, possibly, legal file-sharing (public domain stuff, material for educational purposes).
Groups like Project-EquilibRIAA, a public database featuring comments from all the artists named in the Tenenbaum case, are trying to start a broader dialogue.
Meanwhile, the RIAA already announced they are stopping these lawsuits -- though not, apparently, before trying to collect money from a bankrupt Tenenbaum. I hope the dialogue continues, and the voices of people outside the corporations get louder, but it's up to us to make that happen.
For more information, visit:
For educators: EFF's "Teaching Copyright" Curriculum
A possible class-action lawsuit against the RIAA.
If you have received a threatening RIAA letter, read this.
Larisa Mann writes about technology, media and law for WireTap, studies Jurisprudence and Social Policy at U.C. Berkeley and DJs under the name Ripley. She is a resident DJ at Surya Dub, San Francisco, and collaborates with the Riddim Method blog-DJ-academic crew, Havocsound sound system, and various other cross-fertilizing organisms in the Bay Area and worldwide.
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