Commentary

File-Sharer Makes Last Ditch Plea To Slash $675,000 Damages Award

Boston grad student Joel Tenenbaum is arguing in new legal papers that the $675,000 damage award against him for sharing 30 tracks on Kazaa should be reduced because the most he could have cost the record labels totaled $21, or 70% of the 99-cent purchase price on iTunes.

"The plaintiffs say, by including these songs in his share folder, Tenenbaum distributed them to millions of people, causing the record companies 'incalculable' damages," Tenenbaum argues in his latest papers. "This is completely false hyperbole. Not a single person who downloaded these songs using Kazaa would have been impeded from obtaining them had Tenenbaum blocked access to his share folder."

The federal copyright statute provides for damages ranging from $750 to $150,000 per infringement, but Tenenbaum -- much like another high-profile defendant, Jammie Thomas-Rasset -- has argued that those damages are disproportionate to any harm they might have caused the record industry.

U.S. District Court Judge Nancy Gertner in Boston could decide the matter on Tuesday. It's not clear how she's leaning, but her counterpart in Minnesota, U.S. District Court Judge Michael Davis, recently slashed damages against Thomas-Rasset from $1.92 million to $54,000.

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The labels oppose Tenenbaum's request, arguing that judges have no authority to reduce damage awards.

Clearly, many record labels' revenues have plummeted since file-sharing emerged more than 10 years ago. And it's virtually certain that file-sharing accounts for at least some drop-off in revenue. But some file-sharers surely wouldn't have paid for music in any event. At the same time, other Web users might start out as file-sharers, but then turn into paying fans.

Either way, the Recording Industry Association of America's attempt to hold individual users like Tenenbaum and Thomas-Rasset accountable for the industry's woes did nothing to reverse the record labels' revenue decrease.

In late 2008 the RIAA said it would end its five-year litigation campaign -- an effort that targeted more than 18,000 individuals suspected of file-sharing -- but that cases in the pipeline would continue. Unfortunately for Tenenbaum, he was among the unlucky few facing litigation at the time.

The RIAA would do better devoting its energy to developing new business models than continuing a legal battle that, if successful, would bankrupt a grad student while doing nothing to increase the industry's revenues.

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