Predictions for the Tenenbaum Trial

Joelfightsback.com/BostonGlobe.com

The Tenebaum civil trial for downloading and file sharing is set to start in Boston in one week on July 27, 2009. Above, that's Joel and his Harvard student team defenders on the left and their nothing if not controversial and by most accounts either "crazy like a fox" or just plain "crazy" lead counsel, the celebrated Prof. Charles "Charlie" Nesson of Harvard Law School, aka "Billion Dollar Charlie" for his successful role in the real life case against W.R. Grace as depicted in "A Civil Action."

There are four notable sites to track this event. Joel's site is here. Charlie's blog is here. Ray Beckerman's pro defendant blog is here. Ben Sheffner's pro RIAA blog is here.

Essentially, Joel is on the book for up to $4.5 million for the 30 or so songs that the RIAA is claiming for @ up to $150,000 each. That's the potential result based upon statutory minimum damages.

Charlie has conducted a very open and controversial defense, even publishing a bunch of emails from notables such as Lessig, Fisher and others advising that a fair use defense doesn't have a chance.

In my view, the only thing that can be predicted out of all this is as follows, assuming that Joel is an ordinary middle class student and not unusually rich:

• If Joel somehow wins, the RIAA has a big problem.
• If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.
• If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.
• If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

Bankruptcy law in the USA doesn't necessarily discharge judgments for "willful" copyright infringement. See Fred Von Lohmann's analysis here.

But it's hard to imagine even the RIAA members pursuing an ordinary college student or a single mother of two such as Jammie Thomas for the rest of their lives for chunks of their wages or other modest income or assets. But then, who would have thunk that the RIAA would have sued children and dead grandmothers?

The higher the award, the more likely it is that Congress and/or the Supreme Court might get very interested.

Whatever happens, it will be interesting for all who are watching. Whatever else Charlie has done, he has made sure of that much.

BTW, all eyes are on Judge Gertner in the meantime to see how she rules on several outstanding issues, including an order to show cause arising out of some of Charlie's postings on the internet.

HK

No Making Available Right in USA + Statutory Damages Dissed

In a very important decision in the Jammie Thomas case, Judge Michael J. Davis, the Chief Judge of the U. S. District Court for the District of Minnesota has has granted Jammie Thomas a new trial.

He held that he had erred in the notorious jury instruction #15 and that there is no "making available" right in the USA. There must be proof of actual dissemination. The Court ruled that the WIPO treaties are not self executing in the USA and the statute is not ambiguous.

While the potential resonance of this in the USA and Canada is enormous, the immediately interesting aspect is the scathing commentary on the USA statutory damages provisions which resulted in a $222,000 jury award. These comments should be read verbatim by anyone interested in Canada's Bill C-61, because Bill C-61 would make such damages available for a broad range of everyday activity in Canadian households and businesses:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peerto‐peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 741‐42 (D. Md. 2003) (describing defendants as a “global financial‐services firm” and a corporation that brokers securities).

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

It is worth noting that the RIAA brought in its lead litigator - the renowned Don Verrilli who won the Supreme Court Grokster case - to save this case. This attempt didn't work.

Judge Davis is a brave and learned judge who on his own motion re-opened this case when he sensed that he may have made a "manifest error" in his jury instructions.

Congrats to the intervenors including EFF, Public Knowledge and the professors whose research and advocacy turned this around. However, I doubt that this will be the end of the story.

And one bit of potentially bad news for Ms. Thomas is that Judge Davis did rule that "distribution to an investigator, such as MediaSentry, can constitute unauthorized distribution". That ruling is bound to be controversial.

HK

Unmaking of the "making available" right

Ten law professors have filed a brief in the American Thomas case supporting the argument that there is no "making available" right as such in the USA. In other words, without proof of actual downloading by someone other than the RIAA investigators, there should be no liability. Ms. Thomas was the single mother of two who has to pay $222,000 for downloading and "making available" nine songs, worth $9.91 on iTunes.

There is nothing in Bill C-61 to prevent such a travesty of justice in Canada. In fact, Bill C-61 could make the RIAA/CRIA dream of suing children and dead grandmothers even clearer and more viable in Canada than in the USA.

Full credit to the professors who took the time to do this. They are Annemarie Bridy, University of Idaho; Michael W. Carroll, Villanova University; Ralph D. Clifford, Southern New England School of Law; Thomas F. Cotter, University of Minnesota; Jon M. Garon, Hamline University; Stephen McJohn, Suffolk University; Tyler T. Ochoa, Santa Clara University; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia.

And full credit to the trial judge for taking it upon himself to consider whether he had made a "manifest error" in his jury charge that it was unnecessary to prove actual distribution to a third party. Unfortunately, for whatever reason, Ms. Thomas' trial lawyer apparently did not deal with this issue at trial.

If the liability for "making available" falls through in the USA, it would be even more absurd for Canada to adopt the principle as set forth in Bill C-61. And make no mistake. There would be law suits in Canada - lots of them. The music industry can't wait to get going. They failed and fizzled four years ago - and I'm proud to have represented CIPPIC and to have played a key role in making that failure happen.

But Bill C-61 could be CRIA's sweet revenge.

Let us hope that the RIAA/CRIA approach to copyright law as expressed so clearly in Bill C-61 is clearly stopped at the Canadian/American border. Let Canada's children sleep well at night and let Canada's dead grandmothers rest in peace.

HK