BU Alumni Web

Joel Tenenbaum’s Big Day in Court

Grad student now owes the record industry $675,000

| From BU Today | By Seth Rolbein

Joel Tenenbaum, who has been ordered to pay $675,000 to four record companies for illegally downloading copyrighted music, will probably appeal the federal court decision. Photo courtesy of Harvard's Berkman Center for Internet and Society

In May, Joel Tenenbaum was in Venice, worrying that his preliminary oral exam, part of his Boston University graduate work in physics, wouldn’t make the grade. Titled “Correlation Networks of Earthquakes,” it describes a way to use a fancy physics concept to connect (maybe even predict) seismic rumbles.

Now Tenenbaum (GRS’13) has a different worry: a verdict in Federal District Court in Boston ordering him to pay $675,000 to four record companies because he illegally downloaded and shared 30 copyrighted songs.

Tenenbaum’s crime, admitted on the witness stand during his trial last week, is one that many 25-year-olds might cop to: building a huge collection of tunes, from Nirvana to Beck to the Ramones, downloaded from the likes of Napster and Kazaa, and sharing them with peers. What sets him apart from the rest of the downloading crowd is being taken to court by the record industry for it — only the second person singled out for prosecution. The first, a woman from Minnesota, was ordered to pay $1.92 million in damages in June.

The Recording Industry Association of America “came right out and said they intend to teach the public a lesson,” says Tenenbaum, “so they are trying to make an example of me. But really, charging huge sums for something that everyone in the generation did?”

Not everyone is getting the proverbial 15 minutes of fame about the issue, however, appearing on CNN, quoted in papers coast to coast, and represented in court by Charles Nesson, William F. Weld Professor of Law at Harvard Law School. For Tenenbaum, it was a four-year path, starting with a letter in 2005 charging him with violating musical copyrights. Almost 20,000 people received such letters, and many settled with the record companies, paying several thousand dollars and moving on.

“I sent them a $500 money order,” Tenenbaum says, “but they returned it, saying something like, call us when you’re ready to pay.” That call never came, but two years later a formal lawsuit did. “I showed up in court with my mother and offered $5,250,” he remembers. “They came back and doubled that.”

The record companies have a different take on the matter. They argue that Tenenbaum knowingly broke the law, and despite discussions and negotiations, continued to do so — and tried to cover up his activities.

“In the beginning, I was just trying to stay alive, with the belief that the issue deserves a day in court,” Tenenbaum says. “At that point, Professor Nesson swooped in and saved me.”

Charles Nesson’s reputation as a flamboyant, influential professor of law is unquestioned, although reportedly he has tried only four cases prior to this one (including his 1973 defense of Daniel Ellsberg, who leaked the Pentagon Papers, a top-secret Defense Department report, which resulted in a devastating indictment of Vietnam War policies). His defense of Tenenbaum during a four-day trial left some observers wondering about tactics; Nesson invoked his own use of marijuana early in the trial and drew chiding from Judge Nancy Gertner to stay focused and ask specific questions.

Nesson’s case teetered when Gertner ruled that an argument (apparently intended to be the heart of Nesson’s defense) that Tenenbaum’s tune-taking was permitted under what’s known as the “fair use doctrine” would not be allowed.

Fair use allows people to take a snippet of copyrighted material — for example, a quote from a book — as part of a broader argument. It also allows someone to alter a copyrighted photograph and make it his own, as artist Shepard Fairey did with a photo of Barack Obama. Tenenbaum and Nesson had hoped to argue that if an entire CD is copyrighted, grabbing one song (even unaltered) could be construed as a fair use snippet. Also, Tenenbaum wasn’t trying to profit from his use, another consideration in his favor.

But the judge wasn’t buying it. “We thought that was a question for the jury,” Tenenbaum says, “but she ruled against us.” The ruling may provide Nesson with grounds for an appeal.

Losing fair use didn’t leave Nesson with a lot to build on; after all, his client admitted on the stand that he broke the law. There was another legal concept that could have helped: the controversial, if historic, notion of “nullification,” which allows juries to conclude that the law, although broken, is unjust, and so any punishment should be minuscule. Nullification has been invoked in this country as far back as the Revolutionary War and for varying reasons — among them to protect white defendants during the years of segregation in the South and to let draft resisters off easy during the Vietnam War.

Defense attorneys are not allowed to argue for nullification, asking a jury, in effect, to ignore the law. So Nesson “danced around” the issue, in Tenenbaum’s words, urging the jury to make its damage award as small as possible, arguing that if it cost 99 cents to download a song on the Internet, it didn’t make sense to force this well-intentioned first-time culprit to pay huge sums. Perhaps the jury saw some merit in this; damages could have been as high as $150,000 per song, and the ruling came back at “only” $22,500 each, a total of $675,000 for 30 songs.

Predictably, the recording industry claims victory, saying that the jury was protecting “the music community” from “the impact of illegal downloading.” Tenenbaum claims some victory as well, “at least in the court of public opinion, if you will. I came to trial to try to get a message across, and I think that message was conveyed.”

But what is the message?

“If you’re going to say that file sharing was wrong or caused damage or harm and I’m responsible for that, then hold me responsible in a reasonable way,” Tenenbaum argues.

That’s not the most satisfying message imaginable, but neither is this case over. There likely will be an appeal, as well as a request to Gertner to reduce the jury’s damage award. How those will fare is hard to say, but one thing seems clear: Tenenbaum will not be paying $675,000 to Sony, Warner Bros., Arista, and UMG. He’d rather go bankrupt, he says.

Meanwhile, “real life” resumes. He is working on a graduate degree in physics, and he taught one summer class. He hopes the physics department will offer him enough financial support so he can pursue his research full-time this fall.

It seems that correlation networks — the kind that don’t violate copyright — deserve further exploration.

Print: Print this Article

Share:

Email: Email this Article

The content of this field is not retained.

Enter multiple email addresses separated with commas.


Comments

On 17 August 2009 at 3:21 PM, Mike (ENG'83) wrote:

Mr. Tenenbaum may be guilty, the recording industry may be teaching him a lesson, but good luck collecting that sum of money from him. If a person doesn't have it, they can't collect it no matter how legal the ruling is.

On 14 August 2009 at 6:14 PM, Dr. JS Wilson (CAS'81) wrote:

I am not an attoney, perhaps one can comment; but aren't financial damages limited to the actual amount of the damage? Excluding any fines which everyone is subject? So there would have to be damages, fees, expenses, and fines to the amount? Perhaps they are asking for legal fees, and the longer the case goes, the greater those become. At any rate, it certainly appears his defense is "everyone else is doing it" . That is true, but it doesn't make it legal. If everyone else drinks and drives, and you get caught doing so; you are subject to the consequences regardless of how many out in society did not get caught. Doing an illegal activity that is not equally enforced, that not everyone doing it gets caught or charged for, does not make it legal. This is why good citizens always have to rely on a sense of self control; of course not every illegal activity is going to be litigated. The only way to change a law is through the proper processes, not by indidivduals making it so by continuing in that activity. I suspect the reason it has gone so far is that the judge feels that this message STILL hasn't gotten across to the defendant, and based on the comments in the article, it has not. I am reminded of whenever I wanted to do something growing up; and my rationale was "everyone else was doing and it", was a wrong thing; I was told: "If everyone else is jumping off a cliff, would you also do so?" But then agan, I was only a child; not an adult college student who should know better. I guess then if everyone in the class is cheating on a test that is OK also? Like someone else alluded to, I wonder about the basic ethics and morals at play here. That the wrong that was done still hasn't made an impression on this individual. His take seems to be that the law and music industry are in the wrong? Remember, that at play here is the concept that artists be paid for their work; just like he wants to be paid for his work. As a musician, it is frustrating that non-musicians feel artists should provide their work for free, while other occupations deserve to be paid. This individual is asserting that Physics Doctoral students should be paid, whereas a performing artist should not.

On 13 August 2009 at 10:35 AM, Erica (CAS'05) wrote:

This issue is not as simple as some of the comments would imply--how can you steal something that's broadcast for free on the radio? What's the difference between what Joel did and taping songs off the radio? He didn't sell the songs or put his name on them, he downloaded them for personal use and shared them. The law may seem black and white, but it's malleable. I'm surprised at how quickly people condemned Joel (and entire generation). Good thing for Charles Nesson.

On 13 August 2009 at 9:01 AM, Alexandra O (CAS'07) wrote:

My friends would chuckle whenever I told people that I paid for all the music I downloaded, but I never had to look over my shoulder for the RIAA or worry about paying fines of (hundreds of) thousands of dollars. I believe this is a byproduct of a generation where everyone got a trophy, no matter if they won or lost. Joel, listen up - you're not special, you don't get to pick and choose what laws you obey.

On 12 August 2009 at 11:17 PM, Jane (CAS'74) wrote:

Unfortunately Mr. Tenenbaum never learned that "what's yours is yours". Just because he wants it - and for free - doesn't make it his. Hopefully he won't have to experience somebody, one day, stealing his research and putting their name to it. I'll bet he won't be so cavalier about intellectual property then. Okay, Tim, so 675K is a lot of money, and that aspect of the legal system is way out of line. It's not pain and suffering, it's not even damages. But Tenenbaum should not play the ethical card here. Let him clean up his act first. Hopefully in appeal he'll have to pay something more in line with what HE did, what HE stole.

On 12 August 2009 at 8:50 PM, John (COM'07) wrote:

I had such a scare when I was a sophmore for downloading that I haven't touched a downloading site. Also, there are plenty of ways to stream music/video online now for free and "downloading" and programs like "kazaa" seem archaic to me. As for the lawsuits, this is just like when film studios went against video recording years ago; sony makes the blank cd's and burners that are used to download music and distribute. They got caught behind the digital movement and are suing to catch up. Also, don't make a statement about the "declining morality" of the "youngbloods" and make yourself off as high and mighty. Every generation has their stains and actions that go against the status quo; your generation is being "shafted" by this one just as members of yours went against the generation before you and just as those who come after us will "attack" this generation. It's not "degrading morality", its constant dissent that every generation has. We all find our own reason to fight (and usually regret it once we're older).

On 12 August 2009 at 11:17 AM, Hanoch (CAS'98) wrote:

Mr. Tenenbaum's case is a shining example of the creeping degradation of morality from one generation to the next in our culture. While it may seem cute, it is the kind of mentality that, when widespread, destroys societies. The current financial crisis -- ultimately rooted in thousands of individual abuses -- should be a wake-up call to that fact.

On 12 August 2009 at 8:26 AM, Michael Scully (CAS'77) wrote:

These youngbloods have to come around on this. It is AGAINST the law. Do they assume some darling status because they can pass things like statistics and organic chemistry (believe me, I couldn't)? Sooner or later, the feds are going to start criminally prosecuting music scofflaws. LONG LIVE THE BU RUGBY CLUB. Thanks. Michael Scully

On 12 August 2009 at 8:19 AM, Tim D. (CAS'06) wrote:

Unbelievable that the RIAA pushed this hard. I was sued by them in 2005, as well, and decided to shell out the $3750 settlement. It took me a year, working two jobs while trying to finish out my senior year. Like Joel, I don't deny that file sharing is against the law. But $675,000?! Nobody has that kind of money. And at the end of the day, the RIAA lawyers and board members will drive home in their BMWs, while us college students are still stuck eating EasyMac every night.

Post Your Comment

The content of this field is kept private and will not be shown publicly.

Which is lightest? elephant, cat, moon, tissue

Persons who post comments are solely responsible for the content of their messages. Bostonia reserves the right to delete or edit messages.