RIAA v Joel Tenenbaum: Million Dollar Lawsuit For Seven Downloaded Songs

Joel Tenenbaum was one of thousands, perhaps millions of teenagers. When he was 17, he allegedly downloaded seven songs from the Internet using a peer-to-peer file sharing program called Kazaa [Both parties appear to agree this is a downloading case, not (solely) an uploading case like many of the others]. Now, 10 years later, he is being sued by the Recording Industry Association of America (RIAA), along with Capital Records and Sony BMG. What does the RIAA want from Mr. Tenenbaum? $1 million.

But before we begin to think about the legal details and who is right or wrong, let’s think about why this is a problem. For starters, the current architecture of the Internet does not technically support copyright. It is different from controlled virtual environments such as Second Life, in which any object made by someone will forever contain the “watermark” of the maker. Items or programs in Second Life can be designated at birth whether or not they will be copyable or transferable.

That does not mean copyright has no meaning on the Web– only that the architecture of the Web makes it easy to exchange copyrighted material to a scale that cannot compare to what could happen in the physical world.

Is the Architecture of the Net Creating Problems?

These copyright issues are taking place because the creators of the Internet did not think like proprietary networks. As explained in Chapter 2, the people who designed the Internet were primarily academic researchers and corporate engineers who “had little concern for controlling the network or its users’ behavior.” When they first made the Internet, they probably had no idea that someone (actually two someones) would come along and invent a peer-to-peer file sharing program.

If the Internet were designed by the RIAA, they probably would have made it so that music would not be able to be shared by multiple people. We can make this assumption because one of the attempts made by the music industry has been to impose digital rights management, or DRM, on their products. DRM gives the media maker the authority to control what can and cannot be done with a song. For instance, a music file can be programmed so that it can only be played a certain number of times, or only on certain devices. While DRMs are increasingly fading, they still have a strong presence in much of the content available on online music stores like iTunes.

So what does that mean for an organization like the RIAA? It could continue its current mission of hunting down music downloaders/uploaders and suing them, hoping in the long run that this will discourage people from doing so. Or, it could look for an entirely different business model that still brings in revenues regardless of Internet file sharing. Or… it could try to change the Internet to one that is more controlled by requiring Internet service providers to impose filters.

That last scenario is something that concerns people like Charles Nesson, Harvard Law School professor and Mr. Tenenbaum’s legal representative. According to Prof. Nesson, the RIAA’s lawsuit against Mr. Tenenbaum is more about working to change the infrastructure to make control of content easier.

In the defense of the counterclaim he argues:

They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future.

That is something we should think about. Will the Internet continue to run on the open infrastructure that it currently is? Do we, as users, have any say in what happens to it?

[via futureoftheinternet]

The Jammie Thomas Case: RIAA Strikes Hard at Kazaa Users

Intellectual property rights are oftentimes thorny issues in the legal community. Enforcing intellectual property laws are challenging, especially in the digital age, which is marked by instantaneous and wide-scale access to materials deemed owned by certain organizations or companies, with only a few clicks of the mouse. Even with the rapid pace of technological change, it appears that much still needs to be done to make clear the parameters on the use and distribution of valuable commercial information or property.

It will be noted that since the dawn of the information age, music piracy has been a widespread practice not just in the United States but across the world. Kept at bay by the expensive prices of original CDs or DVDs of an album or movie, consumers are often left feeling that they’re in a no-win situation – they would like to purchase an original copy but at the same time there may not be much of a difference in quality when getting a replicated or “fake” copy of the real creative work, especially if it will entail huge cost savings.

Jammie Thomas, who hails from Minnesota, is one of the 26,000 people sued by the Recording Industry Association of America (RIAA), and whom a federal judge in Minnesota adjudged liable of copyright infringement after she used file-sharing software on copyrighted music. A single mother to two kids, Thomas became the object of public scrutiny when she was ordered to pay six record companies their due compensation for her act. Yet Ms. Thomas stood firm on her refusal to pay an out-of-court settlement when the record companies, from whom she obtained several songs, fought it out in the name of propping up the music industry and protecting copyright.  It proved very financially draining, though, when Thomas was ordered by the courts to pay $222,000 in damages.

Thomas’ identity emerged when RIAA logged on to Kazaa, whose peer-to-peer technology, in essence, connotes the connection of individual users sans a central management point. Mere installation of Kazaa connects the main user to other users.  Of special note is that Kazaa’s end user license agreement site does issue fair warning to users, noting some of the actions which are not allowed, like transmitting, accessing or communicating any data that users do not have a right to transmit under any law or under contractual or fiduciary relationships; and  transmitting, accessing or communicating any data that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party. For more information on the role that Kazaa plays in copyright law, take a look at our article RIAA Settles Kazaa Copyright Battle with Bronx Woman.

The Jammie Thomas case shows that state and common law rights may actually be inadequate in giving  original expressive works a protective shield against unrestricted copying. In the cyber-era, there appears to be a greater legal uncertainty on what constitutes an infringement or not. In the case of Thomas, the songs being shared on her Kazaa file-sharing account online included popular tracks by the Swedish “death metal” band Opeth, Janet Jackson, Guns ‘N’ Roses, Journey, Destiny’s Child and several others.

Jammie Thomas has found sympathizers in the form of university professors (upon retrospection, it will be remembered that the “No Electronic Theft Act” of 1997 also had the academic community opposing it) not to mention the case judge who had mulled over the declaration of a mistrial. Fueling the judge’s doubts and misgivings is an assessment on whether the act of putting a file for distribution by way of placing it in a shared folder, without evidence of being downloaded, actually constitutes copyright infringement.

The Jammie Thomas case truly perplexes ordinary folks on the internet, who at certain points in their lives discover the “joys” of obtaining music files or even movie video segments online, and enjoy it strictly for personal use.  It seems a hefty price to pay for music that one simply wanted to share with peers. Then again, the huge investments that companies make in creative works of art cannot be overlooked, which in some way does make the ruling on Jammie’s liability a reasonable one.

Just as the arguments on the Jammie Thomas case have been heating up, people may well recall and refer to the Digital Millennium Copyright Act in 1998, which was signed into law by President Clinton in October 1998, stipulating, among others, that it is a crime to circumvent anti-piracy measures built into most commercial software. This makes us think that if something is truly prohibited, modern technology has devised ways and means to continually remind digital users on what is or is not unlawful.  Moreover, are not service providers expected to limit access or remove material from users’ web sites if these constitute copyright infringement?  The impact of digital technology on the free-flowing exchange or sharing of ideas has been so all-encompassing that individuals may get lost in animation as they keep on discovering and letting others know what they were able to obtain online.  In effect, should not the guardians of the companies with websites be issuing fair warnings protecting not just themselves but those who visit their sites?

The digital age has truly changed many things, and thus also requires a reexamination of intellectual property rules.  While I agree that original creative works or innovations do deserve to be protected from unwarranted copying/replication, distribution to the public through sale, lease or lending, or rental, particularly on a public scale, it is likewise the responsibility of record or movie companies and other intellectual property rights holder to issue fair warnings to consumers on their restrictions.

Sound reasoning  dictates that copyright owners resort to or use technological self-help measures to protect their property. Copyright infringement may actually be stopped on peer-to-peer networks and unauthorized access may be indicated by using file scanning software on file-sharing networks. The instant availability or public access of copyrighted works may be blocked, diverted, or impaired.

As for copyright legislation, it must be noted that its impact on stifling rather than giving ifree rein to creativity on the part of  users for which an innovation  is created, may be worth considering.  Many organizations that strive to stay within the fair use guidelines set by copyright laws are worth emulating. Finally, there are alliances, associations and coalitions today  that aim to promote the rights of  individuals in the copyright law.   The bottomline is that while due diligence in respecting intellectual property is important, creativity and freedom of expression need not be restrained by intellectual property laws and their enforcement.

Do you feel RIAA is in the right by suing ordinary citizens or are they abusing their power?

RIAA Settles Kazaa Copyright Battle with Bronx Woman

Denise Barker, a Bronx woman charged with copyright infringement by downloading eight copyrighted recordings via the peer-to-peer file sharing application Kazaa, has settled a three-year lawsuit with the Recording Industry Association of America (RIAA) for $6,050. Her lawyer, Ray Beckerman admits her client’s act of file sharing but in her defense, challenges the constitutionality of the Copyright Act as quoted by the plaintiffs. According to Beckerman, the damages the act authorizes per download is unconstitutional and against the U.S. Supreme Court precedents.

The defendant filed the answer to the plaintiff’s statement on July 28, 2008 at the United States District Court, Southern District of New York, New York.

RIAA filed the lawsuit on behalf of plaintiffs: Elektra Entertainment Group, Inc.; UMG Recordings, Inc.; and Virgin Records America, Inc., owners of the said copyrighted recordings.

How Attorney Ray Beckerman Fought the RIAA

Beckerman argues that the download cost of each recording would only amount to $3.50. This means that the penalties requested by the said plaintiffs go way above a thousand times of the actual injury to the recording industry, charging fines that amount to $750 to $150,000 per recording. The U.S. Supreme Court rules that financial damages must not exceed a 9-to-1 ratio, or it would be deemed unconstitutional.

Barker admitted to the fact that she is a user of the peer-to-peer file sharing application Kazaa as of November 12, 2004 and has actively shared contents with other users in the network including the eight copyrighted recordings duly owned by the plaintiffs. This is alleged by the plaintiffs to be so by her merely making it available on her computer for other Kazaa members to download in her “My Shared Folder”. However, she denies that the plaintiffs issued appropriate copyright notices that could have avoided the lawsuit and subsequent alleged copyright infringements. Barker and her lawyer also state that there is no actual proof that the copyrighted recordings were the exact recording the defendant downloaded and made available. Such a claim was also supported by the U.S. Court of Appeals precedent in BMG Music v. Gonzales, Seventh Circuit, 2005.

Beckerman also cites that the mere joining of and participating in Kazaa, an online media distribution system, cannot be misconstrued as a specific act of copyright infringement.

It was also revealed in the case that the documents referred to by the plaintiff in their complaints were procured by an unlicensed investigator, MediaSentry, now known as Safenet, Inc. The said investigator is therefore guilty of unlawfully “pretexting and invasion of defendant’s privacy” making the plaintiffs who paid and asked for their services “guilty of unclean hands.”

Attorney Ray Beckerman, on behalf of his client Denise Barker, requested for a dismissal of the complaint, and asked for the defendant to be awarded costs, disbursements, attorney’s fees, and other damages applicable.

RIAA already has sued 20,000 individuals for copyright infringement via file sharing on behalf of member record labels such as the abovementioned plaintiffs. Most of the cases were settled out of court for a few thousand dollars each. For example, Denise could have settled for $4,000 once she had received one of the RIAA’s prelitigation settlement letters. Instead, she now has to make monthly payments of $110 per month for the next four-and-a-half years plus attorneys’ fees. Of course, RIAA’s legal bills must have been astronomical.

Jammie Thomas’s case in Minnesota was the only one among the 20,000 RIAA lawsuits that has gone to trial. Thomas was sued for infringing on 24 songs downloaded via Kazaa in 2007. She denied her guilt and challenged the constitutionality of the Copyright Act but was found liable by the jury in October last year. She was ordered to pay $222,000 total damages.

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