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“This is me, I uploaded and downloaded music”: Tenenbaum case update
By CMU Editorial | Published on Friday 31 July 2009
When your defendant takes to the stand and basically says “yeah, I did all of that guvnor”, you can’t help wondering why everyone bothered showing up in court in the first place. Though Joel Tenenbaum’s testimony in the last big RIAA v the file sharers legal battle yesterday confirmed what we already expected, that victory in this case will be measured not on whether or not a not-guilty verdict is given, but on what damages the guilty defendant is ordered to pay. And that depends on your definition of “wilful infringement”, and given the judge’s remarks on that topic yesterday, Team Tenenbaum could well be the losers in that domain too.
So yes, Boston-based student Joel Tenenbaum, who had already admitted sharing unlicensed music on the internet in a pre-trial deposition, yesterday confirmed in court that he had shared via Kazaa the thirty songs listed by the RIAA’s legal men. He also admitted that he originally lied about this naughty file-sharing when first approached by the record industry. You wonder why the plaintiffs had previously gone to such lengths to prove Tenenbaum’s file-sharing through technical means, given the admission, though, as we’ll see, the RIAA’s evidence that Joel continued to file-share as recently as last summer could prove to be key when it gets to damages.
According to Ars Technica, Tenenbaum told the court room: “This is me. I’m here to answer. I used the computer. I uploaded and downloaded music. This is how it is. I did it”. The labels’ legal man Tom Reynolds looked for clarification: “Are you admitting liability for all 30 sound recordings”. “Yes”, replied the defendant. Asked why he had initially lied when challenged about his file-sharing he said “it’s what seemed the best response to give”, admitting his mother, a family law attorney, had been advising him at the time.
Under cross-examination by his own defence team Tenenbaum expressed his love for music, and insisted he never meant to do any harm to labels or artists by accessing and sharing music for free on the net. Remembering when he first discovered the original Napster, he recalled: “It was great… It was like this giant library in front of you with all sorts of songs… It’s all up there… It’s like the Google of music… You have this list of songs, and you can get them really easily”. Asked if he considered whether this huge free library of music was legal, he added: “I guess it wasn’t foremost in my mind… Now I’m thinking a lot more about whether it’s illegal”.
Given Tenenbaum’s admissions, the plaintiffs requested the judge rule in their favour on ownership, liability and wilfulness without passing any of the issues to the jury. Judge Nancy Gertner did just that on ownership – ie that the labels represented by the RIAA own the thirty songs in question – mainly because the defence have never objected to that claim. On the issues of liability – did Tenenbaum commit copyright infringement? – and wilfulness – did Tenenbaum infringe wilfully? – Nancy is still having a think. She admitted that, given Tenenbaum’s admission, she may well rule on liability in the labels’ favour, and leave the issue of wilfulness to the jury. She will confirm her decisions in that domain before the final day of court presentations begin later today.
As previously reported, whether or not Tenenbaum infringed ‘wilfully’ is important because it can have a big impact on damages, increasing them five-fold. The labels seem keen to get as big a damages figure as possible out of this case, even though Tenenbaum will presumably never be able to pay multi-million dollar damages, and such a conclusion to the case will probably see the victorious record companies again portrayed outside the court room as a bunch of money grabbing bastards who don’t deserve the protection of the law.
The definition of ‘wilful’ infringement is a bit sketchy. Team Tenenbaum want the judge to define wilfulness as the file-sharer intending to profit from their infringement. But Gertner says she considers wilful infringement to mean infringement “with knowledge of or ‘reckless disregard’ for the plaintiffs’ copyrights”. While Tenenbaum said he didn’t really consider the legality of Napster when he first discovered it, given he continued to file-share even once the RIAA’s litigation against him had begun, under that definition the defendant probably is guilty of wilful infringement. Which could prove expensive damages wise, taking the labels’ claim from $900,000 to a potentially staggering $4.5million.
After Tenenbaum’s own testimony, the RIAA’s team wheeled out two Warner Music execs, one to confirm Warner’s ownership of some of the songs of the list of thirty shared tracks, another to discuss the efforts by the record industry to launch licensed digital music services – a bid to counter claims by Tenenbaum’s main lawyer Charles Nesson that file-sharing could be justified because of the music industry’s poor efforts in getting user-friendly licensed digital music services quickly to market.
I’d talk you through what Warner’s Ron Wilcox said, but it included talk about the record labels’ original efforts in launching their own digital music platforms – the fated MusicNet and Pressplay – and I’m not sure anyone who worked for a major label back in the early days of digital wants to think about them again.
The defence will present their case today, but are expected to be done and dusted by early afternoon.
