July 31, 2009

RIAA v. Tenenbaum: A defense made of styrofoam

File-swapper Joel Tenenbaum fought the law, and the law won. Now a jury must decide how much he owes the RIAA. Cringe sees little justice in any of this

Another file-swapping trial, another victory for the record companies. I love rooting for the underdog as much as anybody, but this is starting to look like a rout.

As I write this, a jury in Rhode Island is deciding how many millions in damages to award to the record companies in the Joel Tenenbaum file-sharing trial.

[ See more file-swapping funny business on InfoWorld: "Don't stop believing in the RIAA's capacity for evil" | Stay up to date on Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

This case was supposed pit Harvard's crack legal team against the record companies, with the prime objective being to challenge the Constitutionality of the RIAA's police-state tactics. Unfortunately, it was the legal arguments that cracked when Judge Nancy Gertner threw out Team Tenenbaum's argument that listening to music obtained via Kazaa constituted "fair use."

After that, their case turned to styrofoam -- literally. Defense attorney Charles Neeson took a piece of styrofoam and crumpled it to bits in front of the jury to demonstrate what happens to "albums" when they get distributed online. (And if that didn't work, he was going to try balloon animals. Just kidding, I think.)

Of course, it also doesn't help your case when the defendant is a complete knob. (See: Thomas-Rasset, Jammie.)

On the stand, Tenenbaum cheerfully admitted to using Kazaa to download the 30 songs he's being sued about, and hundreds more. That was enough for Judge Gertner, who reviewed the transcript last night and this morning declared him "guilty, guilty, guilty."

It's a bit like someone on trial for murder who says, "Yep, I shot that guy, it was me, eeyuck eeyuck." Unless insanity or self-defense are acceptable arguments in a copyright case, that's probably not the smartest strategy for victory.

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gunner@gulftel.com 31-Jul-09 12:59pm
What aggravates ME about the whole mess is that the dude basically ADMITTED guilt. What is there to defend after that? Only the exorbitant penalty. I WISH we could find one, LEGAL case to use as a flagbearer for the case against the RIAA. I absolutely agree they're arrogant and greedy and that none of the penalties (ostensibly to punish the defendant for the damage to the plaintiff) actually make back to the injured party. Why, then, should there even BE a penalty if the damaged party can't benefit from it???
ned4spd8874 3-Aug-09 10:43am
Something needs to change, that's for sure. I only download songs for two reasons. Either my legally owned disc stops playing for some reason; or to check out other songs by an artist. Then in most cases, I have gone out and actually purchased the album.
bigdtc 3-Aug-09 10:50am
Perhaps the crack legal team from Harvard should have pressed for a change of venue to the Federal Court in Marshall, TX. It has become a favorite patent and copyright battleground in the last several years. It is somewhat amusing to watch the major players at major law firms roll into the sleepy backwater town and have their heads handed to them. The RIAA would find no solace and succor there.
llarzelere 3-Aug-09 11:29am
The big problem here is that the internet devalues everything it touches. As Richard Stallman so eloquently puts it: The information wants to be free. Put another way, as soon as your life's work becomes digital in any fashion, every punk kid thinks that it is ok to "share" (i.e. give away without compensating the author) copies to all 10,000,000 of his "new best friends". As a print author, I closely guard digital rights until handsomely compensated. This is because (unlike music and video authors) I realize that the digital edition is only one looter away from being shared around the globe, author's royalties be damned.
philosopher 3-Aug-09 12:16pm
It's a bit like someone on trial for murder who says, "Yep, I shot that guy, it was me

No, it's more like someone on trial for pick-pocketing in merry old England who says, "Yep, I picked his pocket." And then the judge orders the jury to decide just how long and how severely the criminal pickpocket is to be whipped and beaten before he is hung on the gallows.

And be sure to ignore the effects of the tech meltdown of 2001 and the current 2008 economic bubble bursting on CD and DVD sales. And when the RIAA-sponsoring companies proclaim, in writing, "Own the DVD!", pay no attention to the fact that ownership of the DVD or CD entitles the owner to make and distribute as many copies of his property as he wishes. Don't force the RIAA-sponsoring companies to change their ads to read "License the DVD!" so that they are honest and accurate.

A41202813@GMAIL.COM 4-Aug-09 5:33am

Intifada.

rcprimak 4-Aug-09 9:01pm
"Fair Use" only applies to making copies for your own use or archives of materials which you have paid for. This does not describe filesharing. While the penalties violate the idea of the punishment fitting the crime, some penalties are justified, IMHO.

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