Defendant: Blame Labels For File-Sharing

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The record labels themselves are partly to blame for file-sharing on peer-to-peer networks, grad student Joel Tenenbaum argues in court papers filed Monday.

The labels' "continued conduct of releasing their recordings into a digitally networked environment on DRM-free CD's made the proliferation of their recordings on the peer-to-peer networks trivially easy," Tenenbaum says in a motion for a new trial. "Their aggressive promotion of their recordings made such proliferation entirely predictable. Indeed, their mode of publication all but invited sharing."

A jury recently found Tenenbaum liable for copyright infringement and decided he should pay $675,000 for sharing 30 tracks.

Tenenbaum now says that he's entitled to a new trial because the judge in his case, Nancy Gertner in Boston, improperly ruled that Tenenbaum's file-sharing was not fair use. He argues that this decision was wrong for several reasons, including that the record labels themselves sold CDs that were easily uploaded to peer-to-peer networks. "Plaintiffs conduct in releasing DRM-free recordings on CDs while refusing to make these same recordings available DRM-free for authorized purchase online, all the while aggressively promoting the attractiveness of their recordings, should have been considered as a factor in judging the fairness of Tenenbaum's use," he argues in papers filed on his behalf by Harvard Law School professor Charles Nesson.

Tenenbaum also argues that the damage award of $675,000 is unconstitutional because it is "so severe and oppressive as to be wholly disproportionate to his offense."

The copyright statute provides for damages ranging from $750 to $150,000 per infringement. Tenenbaum is asking Gertner to reduce the award to the minimum, which comes to $22,500. "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," he argues. "The award punishes Tenenbaum not only for his own actions but also for the aggregate actions of others, and punishes him not only for damage to plaintiffs but to persons not parties who have been injured by the decline of revenues in the music business."

The Recording Industry Association of America's Jennifer Pariser, senior vice president for litigation, said in a statement that Tenenbaum's motion "depends on theories already rejected by the court or references to inapplicable Supreme Court decisions." She also said the RIAA intends to file a detailed response.

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0 comments on "Defendant: Blame Labels For File-Sharing".

1. The digital Hobo from TheDigitalHobo.com
   

   commented on: January 5, 2010 at 5:20 p.m.

   Who is giving these people legal advice? Everyone that goes to court loses b/c they are blatantly violating copyrights.

   The courts are doing their job, as well they should, and hopefully more violators will smarten up and take the original deal offered to them by the RIAA to settle.

2. Dave Woodall from fiorano associates
   

   commented on: January 5, 2010 at 7:09 p.m.

   Hey Hobo Dork...why don't you take some of your own advice and leave the discussion to the adults...

   From the Digital Hobo Blog (http://thedigitalhobo.com/):

   "Fox Reviewer Canned For Wolverine Write Up - April 8th, 2009
   So ridiculous. Maybe it showed bad judgment, but in this day and age of “scoop or be scooped,” I’m baffled at the firing of Fox News columnist Roger Friedman.
   The friggin’ movie is available online. Sure its incomplete and lacking some special effects, but it seems that (wait for it - Ed)......

   the punishment doesn’t quite fit the crime here. (Really? Where have I heard THAT before - Ed)

   Glad that its OK for bloggers (for now) to point out what is floating around in cyberspace, even if the mainstream media can’t. Apparently you can only write about the fact that the movie has been stolen and is actively being distributed, but you can’t comment on whether the movie is any good.
   Hell, I wrote about how many bad versions of Star Wars had been leaked. (cue drum roll and..... - Ed)

   **Took me at least 5-6 tries before I found a copy without a timecode, with proper Dolby Digital 5.1 and accurate color balance.**

   (The sound you hear is D. Hobo losing what little credibility he/she had - Ed) Too bad the movie still sucked.
   Congrats, Roger. You’ll have a job at a real media outlet soon enough. Like this one. And at least the movie was good."

   Yup....a shining beacon of the anti-piracy faction...and I'm completing ignoring the reference to The Digital Hobo as "a real media outlet".

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