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.