Jury Takes Up Penalty Question in Grad Student's P2P Trial

Joel Tenenbaum's fate was probably already sealed before he went to trial for the copyright infringement of 30 songs by Nirvana, Green Day and the Smashing Pumpkins, but the 25-year-old college student made sure of it on Thursday when he admitted on the stand that he did in fact download and share the songs.

The next day, the federal judge overseeing the civil trial directed a verdict against him, citing the testimony.

Under federal law, four recording companies can receive up to US$30,000 per infringement, with the possibility of expanding that to $150,000 per infringement, should the jury decide it was willful. At the low end, Tenenbaum -- who has blogged and tweeted about the charges and trial -- could well be liable for $1 million.

The decision was a no-brainer for the judge, said Raymond Van Dyke, a partner with Merchant & Gould.

"Although the extent of infringement appears low in this instance, the law still applies," he told the E-Commerce Times. "The Judge, viewing the personal admission of infringement of the copyright rights, was well within judicial discretion to direct judgment for plaintiffs, much to the chagrin of Mr. Tenenbaum's supporters."

Lawsuits as Deterrence

U.S. District Judge Nancy Gertner has directed the jury to decide whether the infringement was willful and to consider the amount of damages to be awarded to the recording labels.

"No one expects to collect, of course, but then these prosecutions were never about the money," Randy M. Friedberg, a counselor at White & Williams, told the E-Commerce Times.

The prosecutions Friedberg referenced consist of lawsuits the Recording Industry Association of America initiated several years ago accusing thousands of people of copyright infringement. Almost all of them were settled for relatively small payments from defendants who feared the legal costs and huge penalties they might incur if their cases should go to trial. At the end of last year, the RIAA shifted tactics, taking a different approach to stemming music file-sharing.

Tenenbaum's case is one of the few that wasn't settled when the RIAA was actively pursuing legal action against individual file-sharers.

"There are three ways to defend cases like these," said Friedberg.

Basically, a defendant can challenge the copyright itself; claim someone else accessed the computer and committed the illegal act; or argue that trading music online is a legal right covered by consumer fair use provisions.

The fair use argument has been long discredited in court, Friedberg said. The first two defenses have only met with limited success -- which is why the odds were against Tenenbaum in the first place.

In the only other music file-sharing case to go to trial, Jammie Thomas-Rasset lost her argument that the music industry could not prove it was Thomas-Rasset who engaged in illegal song trading based solely on tracing the IP address identified as the source of the trading to her computer. She was found liable in Capitol Records v. Thomas-Rasset earlier this year.

Two Wins

A single mother when the trial began, Thomas-Rasset became the standard-bearer for opponents of the RIAA's hardline strategy. With her defeat -- and now Tenenbaum's directed verdict -- the RIAA is leaving this particular battlefield as clear victor.

Still, it's unlikely to go back to the days of pursuing individual P2P file-traders -- a strategy decried even by advocates of copyright holders.

The RIAA did not respond to the E-Commerce Times' request for comments in time for publication.

"I doubt [the Tenenbaum case] will have any effect on the RIAA's policy on the whole, Doug Panzer, an attorney with Caesar, Rivise, Bernstein, Cohen & Pokotilow, told the E-Commerce Times.

"This was a last vestige of their litigation policy, and they have clearly shown that they intend to abandon that approach," said Panzer.

"They most likely came to the conclusion that it's just too costly to pursue litigation. They also were losing the PR battle by suing their customers. Only the RIAA can say for sure, but I suspect they will try to take technological approaches, educational approaches and legislative approaches to the problem, and will stick by their decision to abandon the lawsuits," he speculated.

"The RIAA was going after people to simply make a point," commented Chris Collins, an attorney with Vanderpool, Frostick & Nishanian.

"In long run that was not a good strategy," he told the E-Commerce Times. " I think in the long run, they have to come up with a new way of protecting copyright materials and benefiting from them."