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Come as you are: Tenenbaum case update
By CMU Editorial | Published on Thursday 30 July 2009
So the most interesting development during day two of the Tenenbaum court case yesterday came in a meeting away from the jury, to discuss whether details of past out-of-court settlement discussions could now be presented in court. During the meeting, one of the file-sharing student’s own attorneys told the judge “we’re admitting liability, your honour”.
As previously reported, Tenenbaum was one of the thousands of music fans sued by the Recording Industry Association Of America. The trade body accused him of infringing its members’ copyrights by making music available to others via P2P file sharing networks. Tenenbaum is unusual in deciding to fight the lawsuit.
The defence lawyers’ admission of liability is not really a surprise. Tenenbaum admitted in a deposition to sharing music files via Kazaa. Of course, his lawyers could, technically speaking, have argued that his sharing of the files was covered by the so called ‘fair use’ exemptions that exist in US copyright law. And they probably would have done, but, as previously reported, Judge Nancy Gertner ruled before the trial began that that would not be allowed – Tenebaum’s file-sharing was too rampant to be covered by fair use, not least because he continued to file-share even once the music industry was providing legitimate digital music services like iTunes and the second generation of Napster.
But, nevertheless, it was interesting to hear one of the defendant’s own lawyers, Matthew Feinberg, admit his client was, under current laws, liable for copyright infringement. The student’s chief legal man, Prof Nesson, is, of course, arguing that it is unfair to hold the student liable for simply doing what millions of other people do every day, while perhaps also implying that the Recording Industry Association Of America, in pursuing infringement lawsuits against a few to try to scare the many, was abusing the legal system. But given Feinberg’s comments you have to assume that Team Tenenbaum have accepted that Neeson’s arguments are more likely to reduce the damages the RIAA is awarded, than actually get the student off completely.
Back in front of the jury, the record industry wheeled out an Iowa State University IT expert to talk the court through all the evidence the RIAA has amassed of Tenenbaum’s file-sharing activity, including the original file-sharing via Kazaa and more recent P2P shenanigans utilising LimeWire.
As previously observed, the lengths with which the RIAA’s team are going to in order to prove Tenenbaum did file-share are interesting, given the student has already admitted his guilt. Though Dr Douglas Jacobson seemed to there to particularly demonstrate that Tenenbaum continued to file-share after receiving correspondence and even litigation from the record industry – maybe as recently as last summer. Presumably they want the jury to think the defendant was, by that stage, just taking the piss.
Legal experts add that the RIAA is also trying to prove that Tenenbaum’s infringement through file-sharing was “wilful” rather than “regular”. It’s an important if not particularly well defined distinction, because damages can shoot up from $30,000 per track to $150,000 per track if infringement is deemed “wilful”, and if the RIAA wants a headline grabbing damages figure to result from this trial, well that makes quite a different. (Though given the recent coverage of the $1.92 million damages ruling against another file-sharing American, Jammie Thomas, which generally focused on the record industry being a bunch of money grabbing bastards, I’m not sure record damages is necessarily something to aim for, especially given Tenenbaum won’t be actually able to afford anything more than a few grand).
Cross examined by Charlie Nesson, Jacobson was asked first about his work for the RIAA and the fees he charged. The IT expert has been used by the record industry trade body a lot in its anti-P2P litigation campaign, and obviously Nesson wanted the jury to think he is therefore not an entirely reliable witness, being on the payroll of the content owners. Nesson also questioned whether the labels could say for sure that the thirty music files Tenenbaum is accused of sharing were all genuine and full tracks. The agency used by the RIAA to monitor file sharing admitted it had only downloaded a small portion of 25 of those tracks, having fully downloaded the first five.
Presumably that’s because MediaSentry were monitoring thousands of file-sharers and had no way of knowing this particular file-sharing case would ever get to court – though given, according to the labels, Tenenbaum continued to file-share until as recently as last year presumably MediaSentry could have gone back and rectified this slight flaw in the labels’ evidence.
What, Nesson argued, if some of the thirty tracks were fakes, like those the record labels flooded P2P networks with back in the day to try to discourage the use of file-sharing networks? A fair point, though, according to Ars Technica, Jacobson pointed out that Tenenbaum was unlikely to make fake tracks available himself, and noted the student had admitted to listening to and enjoying all thirty tracks before making them available for download.
Next up was Stanley Liebowitz, the University Of Texas economics prof, on hand to discuss the financial impact of file-sharing on the record industry. He pointed to the fact the sector had seen its revenues grow steadily from the early seventies to 1999, but that then things started to slide, dramatically, and had continued to ever since. What happened in 1999? “Napster”, said the prof. The expert conceded there were other explanations – price shifts, economic conditions and, most importantly, the rise of the DVD and video gaming markets that take custom away from the music business, but, he argued, none of that explained the severity of the revenue collapse the record industry had suffered. Only the huge supply of free music online could explain that.
Next another major label rep, Universal Music attorney JoAn Cho, whose testimony included a short musical interlude with Nirvana’s ‘Come As You Are’ played out in the court. Cho confirmed that the track, as downloaded from Tenenbaum’s Kazaa account, was one of the thirteen sound recordings owned by Universal among the thirty the student is accused of illegally distributing.
According to Ars Technica, the aforementioned Feinberg did the cross-examination of Cho and it got pretty heated, with the defence lawyer seemingly trying to get Cho to admit the major labels had an overly excessive litigious streak and were in essence abusing the legal system to scare kids. Cho, like a Sony rep the previous day, admitted major label litigation against individual file-sharers was designed to act as a deterrent to the masses but added that she was not part of team who planned that legal campaign. Feinberg continued to question abrasively, leading to numerous objections being raised by plaintiff attorney Matthew Oppenheim, most sustained by the judge. As with the previous day when Nesson had questioned Sony rep Wade Leak, at one point Judge Gertner declared “sustained” before Oppenheim even had time to object.
The case continues today with two Warner Music execs expected to take the stand, and then Tenenbaum himself, which could prove to be the most interesting part of this trial, and indeed the whole of the RIAA’s P2P litigation campaign to date.
