Friday, July 31, 2009

Jury deliberating in Tenenbaum case; Nesson: 'Joel was addicted. He became addicted to free music with Napster.'

Joel Tenenbaum is a “hardcore, habitual, long-term, persistent infringer, who knew what he was doing was wrong and did it anyway,” recording industry attorney Timothy Reynolds argued to the jury who will determine how much the 25-year-old grad student will have to pay for his admitted use of peer-to-peer software to obtain music for free.

But it is “hard to imagine an infringer who is lower on th[e] scale [of culpability] than Joel,” countered his counsel, Harvard Law School professor Charles Nesson. “Let the punishment fit the crime.”

And Nesson made a blatant play for jury nullification, urging the jury to award damages on only one song among the 30 Tenenbaum has admitted infringing. “If you don’t fill in any of those boxes” for damages, “that’s totally within your power.” The plaintiffs strenuously objected -- pleas for nullification are strictly forbidden -- and a clearly angered Judge Nancy Gertner agreed, reminding the jurors of their obligation to follow the law.

With liability already decided in plaintiffs’ favor in an early-morning order by Judge Gertner, the focus of the case turned to willfulness (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights") and damages. The two issues are closely related. Under Section 504(c) of the Copyright Act, the jury may award statutory damages of between $750 and $30,000 per infringed song in the case of “regular” or non-willful infringement. If, however, the jury finds Tenenbaum’s infringement to be willful, the maximum it may award jumps five-fold, to $150,000 per song.

“There is no issue as to liability. There is no issue as to liability,” Judge Gertner repeated for emphasis.

Given the finding of liability, the jury must award at least the minimum of $750 per work, or $22,500 total for the 30 songs at issue. The maximum potential award is $150,000 multiplied by 30, or $4.5 million. At the first Jammie Thomas-Rassset trial, the jury awarded $9,250 per song; at her retrial in June of this year, a different jury awarded $80,000 for each of 24 songs, totaling $1.92 million.

As they did in the two Thomas-Rasset trials, Plaintiffs did not ask the jury to award a specific amount of damages within the statutory range. “How much in damages should be awarded here is your job,” said Reynolds, “and we leave it in your good hands.”

Reynolds and Nesson painted starkly contrasting pictures of Tenenbaum, who is on his way toward a Ph.D. in physics at Boston University.

To Reynolds, Tenenbaum was a repeat miscreant, who started using Napster in 1999, turned to numerous other peer-to-peer services when the last one got shut down, and continued his infringement despite multiple warnings -- including at least one from his own father -- that he should stop. “Did he stop? Did he even consider it? Not at all… He actually increased both the size and scope of his infringement,” said Reynolds, of the Denver-based Holme, Roberts & Owen.

But Tenenbaum couldn’t stop himself, said Nesson. “Joel was addicted. He became addicted to free music with Napster.” And he never intended to make money from his infringement, or to harm copyright owners. “His purpose was completely personal. No maliciousness. No intent to injure.”

Nesson conceded that Tenenbaum may have saved a small amount of money by downloading songs for free instead of paying for them. But he strenuously denied that Tenenbaum’s distribution to others caused any harm to the plaintiffs, given that many others were likely sharing the same songs. “There were many, many copies of these songs available,” said Nesson. “The fact that one more become available doesn’t change anything.”

But Reynolds pointed out that Tenenbaum admitted being the initial “seeder” of at least one file, an unreleased Deftones song that he recorded off a television performance and made available on KaZaA, and then publicized its availability in a Deftones fan forum. It’s “inconceivable” that no one downloaded that song from Tenenbaum, said Reynolds.

Judge Gertner then instructed the jury, and at 1:43 p.m., the five men and five women, all white and all from Boston's suburbs, were sent to eat their lunch and deliberate.


  1. Ben, I assume that Nesson went first as per the standard of plaintiffs have burden of proof so they get last word (never seen it done otherwise). So, did Reynolds try to clean up the damage of Nesson and make absolutely clear that they have to award at least the minimum for each song (or did Judge Gertner do it).

  2. Yes -- Nesson went first. And Reynolds cleared up the damage, as did Judge Gertner. I think it's clear to the jury that they have to award at least $750 for each of the 30 works.

  3. I've been following the trial with interest from the UK - strikes me as unfortunate that the person offering Tenenbaum a legal lifeline appears to be a well-meaning but slightly eccentric academic rather than a streetwise trial lawyer. Perhaps the latter would have concentrated on the difficulty of proving the economic harm caused by one individual..

  4. Prior to this, I had never really seen anyone mention that music is free to the personal listener all over the place. The radio, television, youtube, many of the music sites offer free downloads. This is what continues to hurt the RIAA. People generally don't pay for a very large portion of the music they listen to over the course of a day, week, or lifetime. They occasionally buy an album or cd, but then how often do they listen to that same album? Probably not more than a handful of times on average. People expect music to be free and that is the problem the RIAA has.

  5. @Anon: Radio and TV pay extra money for the songs they broadcast, generally including both an up-front license fee and a cost per individual play. Youtube is notorious for muting (or deleting outright) videos which have copyrighted material. Sites which offer free downloads either pay for it, or are infringing.

    Believe me, people have thought about this issue. The fact that you personally don't pay money for something doesn't mean that nobody paid money for it. (Which is, as a side issue, one of the reasons that licensing is so friggin' complicated.)

  6. To 11:53 AM:

    "...slightly eccentric academic rather than a streetwise trial lawyer" is the understatement of the year. But then, you are from the UK.

  7. I love the fact that Prof. Nesson's closing apparently included the wise old man/ "the bird is in your hands" story. Anyone remember the episode of The Practice in which a famous old Boston lawyer, who can't remember the facts when he is doing his closing, tells the same story (which I think is from Gerry Spence's How to Argue and Win Every Time)? Not suggesting Prof. Nesson couldn't remember everything, but I couldn't help thinking of the scene.

  8. The bird's in my hands? But what if I HATE birds?

  9. This award is a joke it really ist-The songs cost 30$ !

    But my feeling is this was intentional-Can´t wait to see what the Supreme Court rules..

    And that is what the RIAA doesn´t want because then für 300$(10:1 maximum) they can´t bully people anymore-And their legal fees they will never get back...

  10. Ben, Tenenbaum seems to be saying that if the jury award is sustained he will "declare bankruptcy". Given that he has admitted to a lot of bad behavior, do you think that his jury award is dischargable in bankruptcy court? Or is that what all the sturm und drang about not intending to hurt artists or record companies was about? (i.e., 11 USC § 523(a)(6))

  11. Chris:

    I haven't looked at the case law in the First Circuit on this. In the 9th Cir., there's a recent case, In re Barboza, 545 F. 3d. 702 (9th Cir. 2009), that held that the bankruptcy code's reference to "willful and malicious" under Section 523(a)(6) is NOT the same as willfulness under the Copyright Act. So, at least in the 9th Cir., a finding of willful copyright infringement does NOT automatically mean that the debt is nondischargeable in bankruptcy; there has to be a separate proceeding in BK court to determine whether the acts of the infringer were "willful and malicious" under the BK Code. I just haven't looked at 1st Cir. law in this area yet.

    Here's a good piece on this issue:

  12. Lets be honest the award is unconstitutional no matter what?

    This is what Neeson really wants - An award of 22500:1 is unconstitutional.

    So it could really happen that this lands in the Supreme Court,the RIAA gets damages of 120$(4;1)-But Joel has legal Fees of approx 1 MILLION $.

    Then he can declare bankruptcy and the RIAA will bascially look that absolute twats.
    Good that this is not even remotely possible in Europe.

    Can you lot understand why the majority of Brits don´t want to send Mckinnon to the USA when gross miscarriages of juctice like this are applied in american law?


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