• by Wendy Davis  @wendyndavis, January 5, 2010

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.