O Tenenbaum, O Tenenbaum

The following appears courtesy of The Music Void. See all of Ted Cohen’s Digital Diatribe columns for The Music Void at TheMusicVoid.com.

by Ted Cohen

Last week, the digital world watched with great interest as Joel Tenenbaum, a 25 year-old Physics graduate student at Boston University went on trial for copyright infringement; a suit filed personally against Mr. Tenenbaum by the RIAA, a suit that, by week’s end, he ultimately lost. A guilty verdict was handed down, along with a $675,000 judgment, or $22,500 per song, for illegally distributing 30 songs via KaZaA.

This was the second such music industry copyright suit that has gone to trial. The first case resulted in a jury finding Jammie Thomas-Rasset of Minnesota guilty, with the jury awarding damages of $1.92 million to the recording industry for sharing 24 songs on KaZaA back in 2005, a massive $80,000 per song. When the decision was handed down everyone was surprised at the severity of the fine levied, creating much anticipation around the Tenenbaum case. Was the first verdict a fluke? A case of over-zealous Midwest justice? Did Ms. Thomas-Rasset’s open disdain for the proceedings, coupled with a severe credibility problem, drive the surprising outcome? Was it the lack of a well-executed defense? The pundits had a field day critiquing the outcome for days afterwards. Ben Sheffner, a copyright attorney who has worked for 20th Century Fox and currently blogs about online copyright issues, summed it up best, “I suspect that many of them were offended, perhaps outraged, by Thomas-Rasset’s finger-pointing at her ex and kids. They obviously did not believe her, as even her defense counsel Kiwi Camara acknowledged a few minutes after the verdict.”

Enter SONY BMG MUSIC ENTERTAINMENT, et al., v. Tenenbaum, the trial set in Boston, the site of many acts of civil disobedience. The Tenenbaum case was going to be different, a legal dream team headed up by legendary Harvard Law professor Charles Nesson, a reasonably likeable defendant and an edgy defense strategy, the Fair Use doctrine. Things, however, derailed early in the proceedings, with Judge Nancy Gertner issuing a last-minute ruling, removing fair use as a defense. This was a major body blow to Tenenbaum. Meanwhile, Nesson’s courtroom demeanor was perceived as quirky and somewhat odd. CNET’s Greg Sandoval reported, “Nesson has appeared at times to invite [drama]. He deputized one of his students to do much of the work in the case. Nesson was also accused of tape recording conversations that took place between both sides’ attorneys, which is against the rules. During jury selection, Nesson asked questions that didn’t appear very significant, such as whether potential jury members liked his turtleneck sweater.”

It never got better, Tenenbaum lost, the damages awarded were significant. So, now what? Well, Joel does not appear chastened by the outcome. On his blog this week, he posted an interesting Q&A with himself:

Q: So are you challenging this [decision]?
A: I think the plan is to appeal to Judge Gertner to adjust the damages. She seemed itching to want to do this for a while. After that we can appeal on the basis that our Fair Use argument was wrongfully dismissed by the court.
Q: If the $675,000 stands?*
A: I declare bankruptcy.
Q: The RIAA are a bunch of rotten bastards.
A: I know.

Ben Sheffner comments, “[Tenenbaum] expressed precisely zero regret for having done the things that led to the $675,000 verdict against him. Whatever one thinks of the labels or the verdict, this was beyond stupid. Soon Tenenbaum will be back before the judge, asking her to reduce the award. Think this attitude will help his cause? In fact, I don’t think it’s an exaggeration to say that this one blog post could end up costing him several hundred thousand dollars.”

Digital distribution is fast, convenient and, with the arrival of DRM-free, extremely consumer-friendly. But it isn’t free; millions of hours and dollars go into the creation of the music we love, it’s now literally at our fingertips. I’ve been out of EMI for over 3 years, far away from the Kool-aid, but I still believe that the digital delivery of music does not obviate the need for compensation to the writers, the artists, the publishers and the labels. This has become a war of IP (Internet Protocol) vs. IP (Intellectual Property); the creative community won this round.

Joel Tenenbaum and Charles Nesson believed this case was about fair use. The jury decided it was about unfair use. How will this issue ultimately be resolved? It seems the jury is still out.

Posted by Ted • Tuesday, August 4, 2009 .