Losing P2P Defendant Tenenbaum Wants New Trial on Fair Use

Harvard Law professor Charles Nesson and his students are still representing Tenenbaum. Nesson was reprimanded more than once by Gertner for quirks such as recording and posting online private conversations in court. The team continues its public-advocacy campaign. A new post at JoelFightsBack.com explains the basics of the motion in “less legal jargon.” It seems to try take advantage of Gertner’s expressed qualms about how the copyright law is written. In entering judgment against Tenenbaum last month, the judge made a plea to Congress to reduce the punishment for infringement (WID Dec 9 p10).

The use of “encryption” in the iTunes Store was an “encumbrance” on the digital music market -- contrary to Gertner’s conclusion that iTunes gave users “exactly the songs they wanted, in exactly the format they wanted,” the brief said. “The fact that digital media was DRM-free on Napster and Kazaa contributed substantially to their immense public appeal,” and eventually led the labels to dump DRM in paid downloads. But until 2007, Internet users faced a “Hobson’s choice” of either buying a DRM-free physical album and ripping it or buying protected singles on iTunes that required proprietary hardware and software to play. Stripping out DRM from downloads would make Tenenbaum “a federal criminal” under the DMCA’s anticircumvention provision, the brief said.

Labels bear some blame for P2P infringement because they continued releasing DRM-free music on CDs, making illicit sharing “trivially easy,” the brief said. “Indeed, their mode of publication all but invited sharing.” The labels were “effectively luring Tenenbaum into a vibrant technology-assisted youth culture,” creating a “public nuisance” akin to an unfenced in-ground swimming pool. “They failed to fence off the songs they published on CD by encrypting them, and they refused to provide an unencrypted online alternative for obtaining them,” the brief said.

Gertner’s refusal to consider the labels’ marketing activities in light of Tenenbaum’s fair-use defense ignores Supreme Court precedent, the brief said. In one case, the high court said Harper Row’s safeguarding of President Gerald Ford’s manuscript for his memoirs negated The Nation’s fair-use defense in connection with acquiring a stolen copy and publishing excerpts -- in contrast to the labels’ sales of CDs in a “digitally networked environment,” the brief said. The TV studios’ lax efforts to stop consumers from recording broadcasts figured in the Supreme Court’s ruling for Sony in the Betamax case, it said.

Copyright owners’ losses from file-sharing aren’t the only relevant ones, the brief said, citing the costs borne by parents and universities of policing Internet use by children and students and turning over their names in court proceedings. Congress has decided that the development of fair-use doctrine is “the province and responsibility of judges,” and Gertner improperly excluded non-owner costs from her calculation, it said.

Gertner also committed “reversible error requiring a new trial” by excluding from evidence an early offer that Tenenbaum made to settle the case for $500, the brief said. RIAA settlements typically have run $3,000-$5,000. Tenenbaum had written to the labels with his offer and a money order enclosed. Gertner blacked out everything but Tenenbaum’s promise to delete any infringing files on his parents’ computer when he returned home from college. That “conditional commitment contingent upon acceptance” of Tenenbaum’s $500 offer became an “apparently unconditional unilateral commitment” with the judge’s redaction, serving as “damning evidence of perfidy” when Tenenbaum didn’t delete the files, the brief said. Gertner misapplied a federal rule that excludes settlement negotiations from evidence if they would be used to prove the invalidity or amount of the claim, it said. They aren’t meant to exclude “compromise-related evidence” from the party making the offer, the brief said. Gertner’s redaction let the labels “characterize the defendant as a liar.”

The brief called the $675,000 damages against Tenenbaum “grossly excessive by any measure” and said the award violates due process. “His file-sharing was for personal use, not for profit, willful only in the sense of knowing but not malicious, not criminal, no different than the conduct of literally millions of others in his generation.” The award unconstitutionally punishes Tenenbaum for “the aggregate actions of others” and to compensate nonparties in the music business, the brief said. The Supreme Court’s Williams standard for statutory damages was intended to protect consumers against corporate wrongdoing even if the harm was small to any given consumer, it said. “Here the situation is in reverse,” and unlike the railroad company in Williams, Tenenbaum would be “bankrupted” by the penalty against him. His conduct was “at most comparable to shoplifting music from a record store,” the brief said.

The brief goes into much detail on the legislative history of bills from the late 1990s dealing with digital copyright infringement. The concern then was about a “centralized server operation designed and operated to do great damage to the software industry,” run by an MIT student. Lawmakers said they were disturbed by an absence of prosecutions of those who ran illicit networks, not against individual downloaders, the brief said. The old Napster was a month away from launching when Congress increased the statutory damages ceiling for infringement, showing that lawmakers were targeting “malicious large scale operations” like the MIT server, it said.

Congress also has never authorized juries to impose statutory damages resulting in awards like the one against Tenenbaum and the $1.92 million against Jammie Thomas-Rasset in Minneapolis, the brief said. Tenenbaum’s jury “should have been instructed to return the award it ‘considers just'” without reference to the statutory maximum of $150,000 for each infringing work. Gertner should reduce the award to the statutory minimum of $750 a work, the brief said. “Tenenbaum’s motion depends on theories already rejected by [Gertner] or references to inapplicable Supreme Court decisions,” said Jennifer Pariser, the RIAA’s senior vice president of litigation and legal affairs. “We will respond to it in detail by the deadline set by the Court.”