Tuesday, August 4, 2009

Why using the courts to 'teach a lesson' to Joel Tenenbaum -- and other infringers -- is perfectly OK

Team Tenenbaum's PR push continues unabated. While I'm highly skeptical that Tenenbaum's defiant, unrepentant attitude will help his cause when he appears before Judge Gertner to ask for a reduction in the $675,000 jury award against him -- indeed, I predict it will backfire -- it's a free country, and his team can bray to the (increasingly skeptical) media all it wants. But see International Korwin Corp. v. Kowalczyk, 665 F. Supp. 652, 659 (N.D. Ill. 1987) ("[D]efendants must not be able to sneer in the face of copyright owners and copyright laws").

But let's keep one thing clear: Tenenbaum's arguments bear scant resemblance to the law as currently written. I want to highlight one example, from a British publication called Bad Idea. In an interview, Tenenbaum defense team member and chief flak Debbie Rosenbaum tells Bad Idea:
The RIAA loses money in its fierce litigation campaign against individual users, and they are making an example out of Joel in order to quote "teach other people a lesson." That is an inappropriate use of the court system and we are disappointed in the outcome.
(my emphasis). Rosenbaum is entitled to her personal opinion as to what is an "[]appropriate use of the court system." But let there be no mistake: the law is crystal clear that teaching both Joel Tenenbaum and other potential infringers a lesson is an entirely appropriate use of the copyright laws, and particularly their statutory damages provisions.

"Teaching a lesson" is simply a colloquial term for what lawyers call "deterrence." And deterrence is a perfectly legitimate aim of statutory damages. Don't believe me? Let's go to the case law. See, e.g., F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233 (1952) (“[t]he statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct.”); Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (range of statutory damage designed to deter willful infringement); Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 113-14 (2d Cir. 2001) (statutory damages "meant to discourage wrongful conduct."); Disney Enters., Inc. v Delane, 446 F. Supp. 2d 402 (D. Md. 2006) (statutory damages necessary to deter future infringement). And there are many, many more.

And in the legislative history of the most recent revision to the statutory damages provisions of the Copyright Act, the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Congress highlighted the importance of statutory damages as a means to achieve "a significant deterrent effect on copyright infringement. See Report of the House Committee on the Judiciary (“House Report”), H.R. Rep. No. 106-216, at 3 (1999); see also Patry on Copyright § 22:100 n.11 ("[A] substantial award of statutory damages for willful infringement is appropriate in order to deter bad actors."); id. at § 22:174 ("[W]hile certainly serving to provide some compensation for defendant's infringement, statutory damages also to serve a deterrent purpose, discouraging wrongful conduct by imposing a high enough penalty so that defendants will realize that it is less expensive to comply with the law than to violate it.").

And, should this case ever reach the Supreme Court, I don't expect Tenenbaum's argument that it's inappropriate for the record labels to use the courts to "teach him a lesson" to gain much traction. The soon-to-be newest member knows a thing or two about statutory damages. And, as a district judge, she even once increased an award of statutory damages recommended by a magistrate judge, on the grounds that it didn't teach a strong enough lesson to the defendant. See
Top Rank, Inc. v. Allerton Lounge, Inc., 1998 WL 35152791 (S.D.N.Y.,1998) (Sotomayor, J.) ("The Court agrees with the defendants that statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff. The Court finds, accordingly, the recommended awards in the Report to be inadequate."); see also Peer Int'l. Corp. v. Luna Records, Inc., 887 F.Supp. 560 (S.D.N.Y. 1996) (Sotomayor, J.) ("Congress's provision allowing for a greater award where willful infringements are found, however, indicates that statutory damages serve the dual purposes of the Copyright Act-compensation and deterrence.... Because of defendant Abel De Luna's willful infringement of plaintiffs' copyrights and his continued infringement after the initiation of this action, I find that substantial statutory damages are warranted to deter him from future misconduct.").

"[C]ontinued infringement after the initiation of this action" -- sound familiar?


  1. Increasingly skeptical media, Ben? That was an interviewer doing their job trying to get both sides. It was classic how Cara the the RIAA spokesperson avoided the whole concept that Joel was trying to make: if used the right way, file-sharing can be like a demo to find what you want, and then go out and buy it, therefore paying the artist their due for putting out quality music. I am not saying that is what Joel did, but he claims he did it to some extent. There will always be those who just leech, Ben. But, an overwhelming majority of this country wants and expects to pay for quality products. The problem is when you go buy an album/cd and it ends up being mostly crap, you got screwed. Using file-sharing as a demoing option for people makes tremendous sense to me.

    One more note, this deterrent of which you speak, will not work. A few mildly publicized court cases with huge amounts is seen as ridiculous and not likely to happen to the average person. The deterrent is therefore useless and all that has happened is the RIAA has ruined two lives financially, and potentially other ways.

  2. For the record, there was no evidence presented at trial that Tenenbaum used p2p to sample songs, and then delete those he decided not to buy. He admitted that he simply used p2p to obtain thousands of songs without paying for them.

  3. Yes, like I said, Joel may not have used it that way, but that doesn't diminish the validity of his claim, nor mine, that many people use it that way. And, if the RIAA could see past their own noses, they might be able to take advantage of this.

  4. Courts have consistently rejected defendants' arguments that their alleged infringement increases sales of the copyrighted works, and is therefore excused. See A&M Records v. Napster, 239 F.3d at 1018 (“[i]ncreased sales of copyrighted material attributable to unauthorized use should not deprive the copyright holder of the right to license the material”); L.A. Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, at *73 (C.D. Cal. Mar. 31, 2000) (same); In Storm Impact, Inc. v. Software of the Month Club, 13 F. Supp. 2d 782, 790 (N.D. Ill. 1998) (same). Similarly, while “[a]ny copyright infringer may claim to benefit the public by increasing public access to the copyrighted work,” this does not render the infringement fair use. Harper & Row, 471 U.S. at 567 (citation omitted).

    And the "sampling" argument simply ignores that Tenenbaum (and other p2p users) distribute the works, in addition to downloading them.

  5. Understood. But, none of that means that what the current law mandates is actually best for all of society, including artists and consumers.

    Of course they are sharing/distributing. What kind of a demoing tool would it be if no one shared anything...there wouldn't be any so my whole point would be moot.

    You are taking this from a very legal perspective only, citing your sources and precedents. I, on the other hand, am trying to have a discussion about whether or not it is actually best to follow these laws or to consider changing them for the betterment of society.

    I believe there are many old and new laws that are never enforced on a daily basis. The fact that the RIAA has chosen this litigious path, clearly civil cases only, to me, exposes their greed and lack of understanding about what it means to be a consumer/producer in the digital age.

  6. Anonymous you could go to a site like Rhapsody, listen and sample all you want, then purchase the music you like. There are many ways to sample without stealing. Who are you to decide what is free. The "everyone is doing it" or "its a generation thing" is a very weak argument. Stealing is stealing. Just because your not physical lifting a CD and your doing in your own home where no one can see you, doesn't make it right. Easy doesn't make it right. People get over yourselves and feeling entitled.

  7. The failure to approach this case from a "legal perspective" is one of the primary reasons Tenenbaum now has a $675,000 judgment hanging over his head. His briefs opposing summary judgment simply ignored the relevant case law and the plaintiffs' evidence, and, as Judge Gertner said, themselves presented no competent evidence that would have created disputed issues of material fact.

  8. Maria, the streaming options for when Joel was caught were not nearly as plentiful as they are today. But your statement begs the question: if you can simply stream whatever you want, how is downloading it stealing? Aren't they all just different ways to listen for free? If you say that Rhapsody pays for its right then substitute youtube. Then you'll say that youtube deletes and bans...but I'll point out that they do a horrible job of that. Every song you can name has at least five or more hits returned in youtube. This is the problem...it is free if you do it one way, but not another. That makes no sense and it is no wonder kids like Joel got caught up in it years ago.

    Also, I never played the generation card or the everyone is doing it card. I understand it is currently illegal. I am pointing out problems with the law as it stands and stating my opinion as to why this problem has come about.

    You should be aware that when Henry Ford created his first automobile and wanted to sell it to the common man for a very low price, there was a group of fat cats much like the RIAA who tried to stop him. Before long, their business model was outdated and they were left with nothing and dissolved. If the RIAA doesn't adapt and change their ways, they will soon go the way of the dodo.

  9. Anonymous at 4:19 PM:

    There have been "streaming" options around for years. I recall purchasing music after hearing it "streamed" on the radio/TV/theater/etc. The same can be said of the headsets in what used to be known as music stores.

    What the internet provides is the opportunity to hear more streams per minute than in the "olden days".

    If you really want to support artists and the many others who collectively provide you with the music you like, then secure a legitimate copy.

  10. Ladies and gentlemen... Lets get ready to rummmbble...In this corner weighing in with well-reasoned, well-supported legal theory, backed up with facts and first-hand, courtside reporting from the entire trial -- Ben Sheffffnerrrrrr...

    And in this corner, weighing in with hyperbolic nonsense, unsupported drivel, and over-emotional, hand-wringing piffle the digital whining class demanding their free stuff.

  11. "If the RIAA doesn't adapt and change their ways, they will soon go the way of the dodo."

    Except in your story, Ford gained market dominance by building a better product, not by misappropriating the "fat cats" own product to give it away for free.

    I would agree that the recording industry would have to adapt if you could somehow compete with them by discovering and nurturing new talent to mainstream appeal in a cheaper and better fashion. But to say they have to adapt to the outright theft of their products is just dumb.

  12. Let us not forget that the conduct of the Recording Industry has largely gone unchecked by the courts. It's no coincidence that they have announced their supposed abandonment of these tactics as more of their customers seek to defend themselves in court.

  13. @Anonymous:

    The role of the courts is not to "check" any party. It's to apply the law. While there have been some setbacks for the labels (RIAA v. Verizon re 512(h) subpoenas, "making available" ruling in Capitol v. Thomas), the vast majority of the legal rulings in these cases -- including the contested cases -- have gone in plaintiffs' favor. I don't think the facts support your theory that the labels' winding-down of this litigation campaign is because they are suddenly concerned about meritorious defenses. And I think the results from the 3 trials so far demonstrate that they do just fine when they present their cases to actual jurors.

  14. To date there have been three trials leading to a jury verdict, and from these verdicts it is quite clear that P2P file sharing of unauthorized content is receiving a decidedly "chilly" reception. Assuming other cases go to trial and result in a jury verdict, there is nothing to suggest that on facts such as presented in the trials to date that a future jury would act contrary to what has occurred to date.

    As Mr. Sheffner has repeatedly noted, our judicial system is directed to the application of our laws, and not as a forum for the advocacy of changing our laws. The proper venue for change is Congress, and it is within Congress that change, if any, can and must be initiated.

  15. Ben: Good point about the "making available" thing. This is, in fact, a HUGE check on copyvio plaintiffs--they now must show specific distribution of the specific file, by the actual user in question. They can't just say "you had uTorrent on your computer" anymore.

  16. Just thought I'd drop by to tell you that just because caselaw says that something is appropriate doesn't mean that it will be appropriate in a country forever.

    We used to have the right to traverse the public highways by the customary means of the day. Then cars showed up, and 50 years later we then needed a "license" that the gov can, and will, rescind whenever it pleases. Technology changes things and the public will, in the end, be the judge.



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.