Wednesday 6 January 2010

U2 can appeal, Mr Tenenbaum

Joel Tenenbaum, who was ordered to pay $675,000 for infringing 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive - the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is of course well within statutory limits. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs.

Now Charles Nesson, Tenenbaum’s attorney and Harvard academic (pictured in a rather fetching turtle neck ensemble) wants U.S. District Judge Nancy Gertner to reduce the damages to the minimum $750 a song or give the Boston graduate student a new jury trial saying “Given the fact that Tenenbaum was one of many millions of people sharing music and that the plaintiffs have failed to show any actual damages from Tenenbaum’s particular actions, this award is obviously “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable”. It is fair to say that the Recording Industry Association of America (RIAA) has now wound down its high profile campaign to sue individual file sharers and downloaders, but this doesn’t detract from the fact that Tenenbaum was convicted on his own admission and the jury’s award well within statutory parameters. It seems likely that whilst the judiciary may be unhappy about the level of damages awarded in both these cases, it is unlikely to take a proactive role in reducing them – leaving this to Congress. As for Congress, as the movie, television and music industries continue to ask for greater protection, it seems unlikely that the legislature bow to pressure to reduce statutory penalties. Nesson is also asserting that Tenenbaum’s 2004 file sharing on Kazaa and Limewire was protected by the US fair use doctrine — a suggestion that online file sharing is permissible. In Tenenbaum’s Massachusetts trial Judge Gertner would not allow this defence to proceed and quite frankly it’s hard to see why this would be allowed to proceed in a second trial. Dowloading files without paying is surely never going to constitute ‘fair use’.

In fact it seems likely that countries will in all probability move to stregthen rather than loosen copyright protection. In the US, the RIAA, the Motion Picture Association of America and others are lobbying Congress and internet service providers to adopt a “three strikes” policy in which internet access would be cut off for repeated infringement. This legislation exists in Taiwan, in New Zealand and (nearly it seems) exists in France – and has been included by Business Secretary Lord Mandelson in the Digital Economy Bill which is in the committee stage the UK. This week U2 frontman Bono heralded the intervention of the movie industry as a potential savior for the ailing music saying that file swapping and sharing hurt the creators of cultural products. Bono argued “the only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files” pointing out that “the immutable laws of bandwidth” indicate that technology is just a few years from allowing viewers to download entire movies in just a few seconds adding “A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators—in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales”! Interestingly the singer pointed out that the US effort to stop child pornography and China’s effort to suppress online dissent indicate that it is “perfectly possible to track” Internet content and felt that the movie and TV industries may succeed where the music and newspaper industries have failed saying “Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product”.

ISP TalkTalk's head of regulation Andrew Heaney responded by telling reporters: "It is outrageous to equate the need to protect minors from the evils of child pornography with the need to protect copyright owners. As a society we have accepted that it is appropriate and proportionate to intrude on people's internet use by blocking access to sites that host child abuse images. To suggest that sharing a music file is every bit as evil as child abuse beggars belief" adding "Bono obviously does not understand how simple it is to access copyright protected content without being detected. P2P file-sharing can be spotted (albeit at great cost) but there are dozens of applications and tools out there which allow people to view content for free and no amount of snooping can detect it". ISPs currently argue that it would cost each and every ISP customer about £25 a year to reimburse ISP’s for tracking and stopping net piracy.

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