Willful Unauthorized File Sharing (Downloading & Distribution) of Music is Copyright Infringement : Fair Use is NOT a Defense for Online Piracy

In the landmark Tenenbaum file sharing case, liberal U.S. Federal Judge Nancy Gertner of the U.S. District Court for Massachusetts, a Clinton appointee who is certainly one of the more modern of today’s judges as a blogging federal judge – see also Slate and Sentencing Law and Policy) – whose legal career is marked by devotion to women, minorities, and the poor – has nevertheless ruled in favor of intellectual property rights that unauthorized music file downloading and distribution is NOT a “fair use” exception under the copyright laws.

Music piracy (viz. unauthorized file sharing or file swapping) or any other kind of willful intellectual property (IP) piracy (downloading and distribution) online is thus clearly a form of illegal copyright infringement and there has really never been any serious doubt about this as a matter of law.

And yet, because illegal filesharing is costly to detect and difficult to enforce at law, music piracy especially is so widespread that the Institute for Policy Innovation has calculated that IP piracy is costing the U.S. economy many billions of dollars a year:

The True Cost of Copyright Industry Piracy to the U.S. Economy

The True Cost of Motion Picture Piracy to the U.S. Economy

The True Cost of Sound Recording Piracy to the U.S. Economy

Therefore, several years ago, the much maligned RIAA (Recording Industry Association of America), representing recording companies that are in part fighting for their ultimate economic survival, engaged in a campaign to bring legal causes of action against the worst offenders among the file sharers, a campaign which has now ended, except for any active remaining legal cases.

As written at Wired in January, 2009:

Last month, the RIAA announced it was abandoning its file sharing legal campaign, which has targeted more than 30,000 individuals but would continue with cases already in the pipeline. Most cases settled out of court for a few thousand dollars.…”

One of the remaining music filesharing legal cases involving P2P (peer to peer networking) is “the Tenenbaum case“, a civil – not a criminal – action against a Boston University graduate student – a doctoral candidate.

Mike Harvey writes at the Times Online:

The major recording labels accuse Joel Tenenbaum, 25, of Providence, Rhode Island, of downloading and distributing songs from bands such as Green Day and Aerosmith through the Kazaa peer-to-peer site….

The recording industry in America has typically offered to settle cases for about $5,000, though it has said that it stopped filing such lawsuits last August and is instead working with internet service providers to fight the worst offenders. Cases already filed are proceeding to trial.

Jaikumar Vijayan writes at Computer World:

Tenenbaum, 25, was sued for copyright infringement by the Recording Industry Association of America (RIAA) in 2007. His case shot to prominence last fall when Harvard law school professor Charles Nesson announced he would represent Tenenbaum in his fight with the RIAA. The trade group claims to have found more than 800 songs stored illegally in a shared folder on Tenenbaum’s computer, although the lawsuit only identifies 30 of those songs. The statutes under which Tenenbaum is being sued allow for statutory damages of up to $150,000 per infringement or up to $4.5 million if the maximum penalties are applied in this case.

The Tenenbaum case is only the second RIAA music lawsuit to go to trial. The other case ended last month with a federal jury in Minnesota assessing damages of $1.92 million against Jammie Thomas-Rasset, a woman accused of illegally distributing 24 copyrighted songs. The award for the RIAA was nearly nine times the original $222,000 fine levied against her in an earlier trial. That award had been overturned on technical grounds.”

Lawyers for Tenenbaum have informally stated that they are without a real defense as a consequence of the rejection of the fair use defense by the trial judge, Nancy Gertner, so that the case will now turn on the damages issue, which will be decided by the jury, but also there, Tenenbaum does not stand much of a chance, since the law is clear.

For details, see Ben Sheffner at ars technica and Copyrights & Campaigns, where he has a comprehensive discussion of the case.

Richard Korman at ZDNet Government has commented on the broad arguments raised by Tenenbaum’s counsel, Harvard Law professor Charles R. Nesson, writing irreverently:

Perhaps the Harvard team was more interested in making a broad alternative restatement of copyright law than in parsing Joel’s admissions in a way that would have allowed them to preserve some remnant of fair use. Maybe that’s what happens when academics waltz into the courtroom?”

Nesson of course is “trying” the RIAA and the legal system more than “defending” his client per se in an area of law where no absolute legal solution has yet been found for the unique intellectual property problems that the Internet raises. In addition, one must be aware of an op-ed written in the Harvard Crimson by Nesson and Wendy M. Seltzer titled Protect Harvard from the RIAA, which isolates the controversial core of the problem involved in the Tenenbaum case from the standpoint of educational institutions:

Students and faculty use the Internet to gather and share knowledge now more than ever….

“[N]ew deterrence and education initiatives” from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for … “pre-litigation letters….”

[T]hese responses distort the University’s educational mission. They impose financial and non-monetary costs, including compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression….

[W]hen copyright protection starts requiring the cooperation of uninvolved parties, at the cost of both financial and mission harm, those external costs outweigh its benefits. We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge. The old copyright-business models are inefficient ways to give artists incentives in the new digital environment.

Both law and technology will continue to evolve….

The University’s educational mission is broader than the RIAA’s demands. We don’t have all the answers either, but rather than capitulating to special interests, we should continue to search for fair solutions that represent the University’s mission, its students, and the law in a way that educates students to be leaders of the digital 21st century.

The problems that Nesson and Seltzer address are by no means “academic”: see EFF, Engadget (with list of top 25 universities receiving infringement notices from the RIAA).

The RIAA countered with its stance on music piracy:

Q: What is the RIAA’s official stance on digital music piracy?

…. When you go online and download songs without permission, you are stealing….

The law is quite clear here….

Q: How much money does the recording industry lose from piracy?

… [M]usic piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers’ earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes….

Q: Has the RIAA stopped filing lawsuits against individuals?

In light of new opportunities to deter copyright infringement, the record industry was able to discontinue its broad-based end user litigation program…. On a parallel track, we have been able to reach a separate agreement in principle with several leading ISPs on a graduated response program for repeat offenders when they are caught engaging in illegal activity online….

Q: What would the RIAA like people to know about the lawsuit program now that it has ended?

The program was designed to educate fans about the law, the consequences of breaking the law, and raise awareness about all the great legal sites in the music marketplace. Like any tough decision, there are trade offs. On balance, the legal marketplace is far better off because of the program….

Q: What is your strategy with colleges now that you are no longer sending pre-litigation letters?

That process has not sufficiently changed beyond ceasing to file new lawsuits…. Over the course of the past couple of years, as the technology to detect online theft has improved, we have sent an increased number of notices to universities….

It’s also important to note that we know college students are some of the most avid music fans…. Like students, we are huge fans of music and want to see a thriving music community that continues to develop exciting new bands for current and future generations.

Q: What does the RIAA consider the university’s responsibility to be in curtailing file sharing? What happens when a university does not cooperate in mediating offenses by students?

… We believe that university leaders have a responsibility to acknowledge campus piracy, to take steps to prevent the theft from occurring in the first place, and to demonstrate leadership in teaching students that music has value and there are right and wrong ways to acquire it….

Q: What steps can colleges and universities take to address piracy on its networks?

Educational institutions are uniquely positioned to shape student attitudes toward copyright….

Q: Is it still illegal to download music on P2P sites like LimeWire, BitTorrent and Ares?


For more political controversy see e-Commerce and TechLaw.

CyberOne: Law in the Court of Public Opinion and JoelFightsBack.com side with Tenenbaum against the RIAA.

PlagiarismToday keeps general track of trial progress.

A related technical idea is the idea of “dark nets”, private nets of the future graphically imaged at p2pnet.net news as follows and showing the difficulties which IP protection will face in the years ahead:

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