This past summer, in only the second lawsuit of its kind to go to trial, Boston University graduate student Joel Tenenbaum was ordered to pay four record labels a total of $675,000 in damages for illegally downloading 30 songs and sharing them online. The decision came one day after the 25-year-old doctoral student in physics admitted in open court that he had illegally downloaded and then shared hundreds of songs through peer-to-peer networks between 1999 and 2007. Judge Nancy Gertner, of the U.S. District Court for the District of Massachusetts, ruled that as a result of his admissions, Tenenbaum had conceded liability; she thus directed the jury to consider only how much he should pay in damages. After only three hours of deliberation, the jury found that Tenenbaum infringed on the copyrights of various songs, including Nirvana’s “Come As You Are’’ and Beck’s “Loser”. In a statement following the verdict, Tenenbaum’s attorney, Harvard Law professor Charles Nesson, declared his intent to appeal; specifically, Nesson disagreed with the judge’s pre-trial decision that the defense could not present a fairness argument–in short, that Tenenbaum had the right to download and share songs under the fair use doctrine of copyright law.

Fast forward six months, and Nesson stands by his word. Last Tuesday, February 23, Nesson argued before the court for a new trial or, in the alternative, a reduced penalty. Nesson called the $675,000 award of damages “oppressive” and “severe,” especially considering that by failing to pay the 99 cents charged online for each of the 30 songs in question, Tenenbaum only caused the companies to lose a total of $21.

Two days after Charles Nesson pleaded his case in Boston and halfway across the country, a federal appeals court ordered a university student to pay the Recording Industry Association of America (RIAA) $27,750—$750 per track—for downloading and sharing 37 songs while in high school. The February 25 decision by the 5th Circuit Court of Appeals reverses a Texas federal judge who previously ordered defendant Whitney Harper to pay $7,400, or $200 per song. While the lower court had granted Harper an “innocent infringer’s” exemption to the Copyright Act’s minimum of $750 per track (because she was unaware she was violating copyrights and in fact believed that file-sharing and Internet radio streaming were one and the same), the appeals court ruled that she was ineligible for such a defense, regardless of the fact that she was between 14 and 16 years old when the infringing activity occurred. Per the 5th Circuit, the Copyright Act precludes such a defense if the legitimate CDs of the music in question provide copyright notices; the court expressed little patience with Harper’s defense that technological illiteracy and age made her incapable of intentionally infringing the record labels’ copyrights: “Harper cannot rely on her purported legal naivety [sic] to defeat the . . . bar to her innocent infringer defense.” The court’s statements present a sharp contrast to the lower court’s holding:

Although proper notice was provided on the cover of each of the Recordings, a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting. In this case, there were no compact discs with warnings, [and] Plaintiffs have not introduced any evidence to contradict that Defendant did not have an understanding of the nature of file-sharing programs and copyright sophisticated enough to have reason to know that her actions infringed Plaintiffs’ copyrights. Therefore, the Court finds that a fact issue exists as to whether Defendant was an innocent infringer.

In December of 2008, the RIAA announced it would finally end the legal assault against consumers that began back in 2003 and has resulted in over 35,000 lawsuits. Rather, the RIAA set its sights on anti-piracy efforts with ISPs. And yet, while high school children and young graduate professionals sighed in relief, two years later two such individuals continue fighting in the war against the recording industry, seeking an opportunity to reach 26 years old without having to declare bankruptcy.

– Jaci Thomson

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