Thursday, August 6, 2009

Labels 'remain willing to settle' Tenenbaum case

From the RIAA's "Music Notes" blog:
FACT: We remain willing to settle this case, but Tenenbaum is so far insisting on filing more motions and appeals in order to continue to pursue his misguided mission to get music for free.

Nobody can argue that people don’t deserve to be paid for their hard work. But through all his illegal actions, Tenenbaum has argued exactly that. Despite all this, we remain open to settling, as we always are and have been.


  1. I stopped reading after the first sentence of the first "fact" where the RIAA claims that JT was caught "distributing thousands of songs to millions of anonymous strangers".

    This isn't even close to a fact. There is no evidence, or even likelihood, that he distributed songs to millions. Ben, what was the testimony of MS regarding their incomplete file downloads? Wasn't it something to the effect of "it would take too long"?

    What we see on both side of the issue are claims represented as facts when, in FACT, they are not.

  2. @Anonymous:

    It all depends on the meaning of "distributed," doesn't it?

    The fact is that no one knows how many actual files were transferred from Tenenbaum to others on the various p2p networks he used for almost a decade. Tenenbaum did acknowledge that he looked at the "traffic tab" on KaZaA, which indicated that files were being actually disseminated from his computer. But again, because KaZaA keeps no such records, and outsiders can't view these transfers, we don't know precisely which songs, or how many transfers.

    I don't think the MediaSentry testimony about their own downloading from Tenenbaum is particularly relevant here. That only referred to a specific moment in time, on August 10, 2004. Tenenbaum used KaZaA (and other p2p networks) for almost a decade. We don't know exactly how many files he actually disseminated, but there's no question that it was a lot.

  3. HAHA. "Argued through his actions." That's a good one. Could easily slip the eye and lead you to believe he actually argued artists shouldn't get paid, when he said the opposite.

  4. @Anonymous 9:46:

    The point is that Tenenbaum said he believes artists should get paid. But those are just words. His actions consisted of downloading and "sharing" thousands of songs, without paying a dime for them. Which speak louder?

  5. Disingenuous soundbite either way.

  6. Disingenuous indeed, particularly since there is no acknowledgement of the music he has purchased.

  7. @Anonymous 10:36:

    Since when does the fact that someone may have obeyed the law some of the time negate the fact that he violated it multiple other times?

  8. @Ben

    It doesn't. It speaks to whether or not he believes that artists should get paid.

    Frankly, none of us really know what he believes. His spin is no more trustworthy than the RIAAs.

  9. @Anonymous:

    What Tenenbaum says he "believes" hardly matters, when his actual actions are directly contrary to this professed belief. Actions speak louder than words; just because it's a cliche doesn't mean it's wrong.

  10. FACT: Tenenbaum offered to settle this case several times before trial. Each time he was rebuffed with an ever increasing amount demanded.

    Now the RIAA has spent hundreds of thousands on legal fees for the trial. Let me guess, they want to now settle for an amount exceeding the judgement + costs?

  11. @Anonymous 11:28:

    My understanding is that every settlement offer from the labels has been significantly below the minimum available statutory damages. And of course the offers increased as the litigation progressed, and Tenenbaum forced the labels to spend money opposing his frivolous motions.

    Tenenbaum could have gotten out of this lawsuit for several thousand dollars. Instead, he has a $675,000 judgment hanging over his head -- one that may well not be dischargeable in bankruptcy. Rejecting the labels' settlements offers is one of the worst decisions he has made in his young life.

  12. Ben, it is quite customary for the settlement offers to be considerably less than the minimum available statutory damages. Cases commonly settle for $3-5k. And if you read the record, you will find that these settlement discussions occurred well before Tenenbaum had counsel and all the numerous motions.

  13. Ben,

    I am beginning to see you as nothing more than an RIAA and music industry shill.

    As you can tell, I mostly oppose the actions of the RIAA concerning these lawsuits, but was hoping to find a place to hear a balanced view.

    These RIAA FACTS are as equally disingenuous as Joel's.

    What are your sources for the RIAA settlement offers?


  14. @Anonymous:

    I have read just about every document in the case. And it's true that the initial offers did occur early in the case. But Tenenbaum did have lawyers informally advising him, including his own mother (an attorney) and a family friend IP attorney in Minnesota. And the numbers increased because he was filing frivolous motions as early as the fall of 2007: his motions to dismiss and for summary judgment, and his sanctions motion. You can read them here:

  15. @Randy:

    You can call me a "shill" or whatever other names you can dream up (for the record, I'm not paid by anyone to do this blog, and I have no financial ties to any of the labels), but that doesn't change the facts.

    Here's one of several sources for the settlement offers. As far as I'm aware, Tenenbaum has never disputed this account:

  16. Thanks for that source Ben. It does show that settlement negotiations between the parties were as close as a difference of only $1000. Plaintiffs $4000, Tenenbaum $3000, but this was as long ago as November 28, 2007, well before the Court said it would appoint pro bono counsel, on January 29, 2008.

  17. And his "ACTIONS" include paying for music, which no one has acknowledged.

  18. @Anonymous 2:03:

    As I said, well before Nesson joined the case, Tenenbaum was being advised informally by his mother (an attorney), and a family friend who is an IP attorney in Minnesota.

    The bottom line is that Tenenbaum could have settled early on in the mid-4-figures. Instead, despite that the facts and the law were solidly against him, he refused the plaintiffs' offers and went to trial. In effect, he paid about $670,000 to become a hero/martyr to some, and to get his mug on CNN. Not worth it, in my book.

  19. @Anonymous 2:50:

    No one has denied that he sometimes bought CDs. But so what? I must have missed the day in law school where they taught that one's wrongdoing is excused because one sometimes obeys the law.

    (Bank robber: "So what if I robbed a few banks. Think of all the ones I didn't rob!" (And, no, I don't think Tenenbaum is like a bank robber. It's an analogy to illustrate a point.))

  20. @Ben

    You're absolutely ignoring the point that's trying to be made regarding his music purchases. Nobody is saying that it excuses breaking the law. The point is that the RIAA implies in their statement that JT (by his actions) doesn't think artists should be paid. He has stated and demonstrated by his actions (his music purchases) that artists should be paid. You can't have it both ways, cherry-picking actions that fit the agenda.

    A more appropriate analogy is the shoplifter who steals candy bars. It's equally absurd to say that, because of the shoplifters actions, they believe that candy bars should be free.

    Rather, and we all know this, the shoplifter just wants a free candy bar. The shoplifter in most cases knows what he did to be wrong and knows that people should pay for candy bars.

  21. @Anonymous 4:49:

    Your candy bar analogy might work if Tenenbaum acknowledged that downloading/"sharing" was wrong, and inconsistent with his professed belief that artists should get paid. (Sure, none of us lives up to our ideals 100% of the time.) But he doesn't. His position throughout this litigation has that downloading/"sharing," without paying anyone, is totally fine.

    That's what a fair use defense is: it's saying that the activity in question is perfectly acceptable and legal to do without paying anyone. To take your analogy: Tenenbaum was saying, "I want my free candy bars (though I sometimes pay for them, too). And the law should be: free candy bars for everyone!"

  22. @Ben

    The original critisism is of the RIAA statement that attributes JTs arguments to his actions. If the RIAA wants to discuss fair use issues, I would welcome that.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.