Sunday, August 23, 2009

My Response to Prof. Charles Nesson re Tenenbaum

Concerning the Tenenbaum case, Prof. Nesson of Harvard, who led Joel’s defense, has asked me on a closed academic list, on his blog, and on my blog “on what issue might I have prevailed had I offered what you imagine to be a good defense?”

Here’s my response.


Dear Charlie:

First of all, given the facts as they have come out both before and as reported in the various media during the trial (I obviously haven’t seen the transcript), I still tend to doubt that this was a particularly winnable case.

BTW, in 2004 we “won” this battle in Canada before it ever really started by preventing the disclosure of the names behind IP addresses in the Canadian version of the RIAA’s attempt to sue individuals. And we have a similar statutory minimum damages regime here, inspired by the USA but with some differences such as a max of CDN $20,000 per work. Still quite dangerous. The Canadian record companies were unable or unwilling to provide sufficient admissible evidence to warrant this disclosure in light of the “risk that the information as to identity may be inaccurate”, the resulting exposure to serious civil liability and the invasion of privacy. We were helped by a pretty good federal privacy statute in Canada and at least two ISPs that seriously stood up for their customers at the time (Shaw and Telus). See here and here. I was involved on the winning side. It’s really too bad that these cases weren’t likewise stopped at the outset in the USA, but that battle appears to have been lost a long time ago in other cases.

There's really not much I can add to my original blog post from August 3, following the July 31 verdict and my other posts on this.

I can point to Ray Beckerman's “wish list”, which outlines several possible technical and practical arguments based upon such matters as dates of registration, lack of proof of actual “distribution” according to the language of and case law on § 106(3), etc. which might or might not have worked to get Joel off the hook. Ray also mentions our Canadian case in his point that “Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.

I don't know which of these issues were addressed at trial or how much evidence on these issues there is on the record.

Apart from a victory based on issues such as those on Ray's “wish list”, the only other conceivably “winnable” issues might have been a very uphill fair use argument and a potentially more successful argument on the unconstitutionality of the statutory minimum damages provisions. I know you have tried to pursue both of these issues.

• Fair Use. If there was a winnable argument here, which far greater experts than me have doubted according to your own blog, it would probably have involved a lot of analysis of the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) and this would presumably have required a lot of economic evidence. This evidence might have come, for starters, from your Harvard colleague Oberholzer-Gee and/or Andersen/Frenz in the UK as expert(s) to show that there was evidence as to no overall harm and maybe even a “benign” or “positive” effect on “the potential market for or value of the copyrighted work”. At least such evidence might have enabled Judge Gertner to deny summary judgment on this issue. It would have also enabled a great debate with the very able Stan Liebowitz, with whom one may disagree - but he is still a very accomplished and important economist in the IP area and an experienced expert witness. Maybe other evidence in addition from someone with knowledge about the economic insides of the record industry would have helped. I frankly doubt, as you have suggested in the Canadian media in your interview with Jesse Brown, that the lack of “fairness” on the part of the record industry either in the way it has marketed music to its customers or treats is customers in its litigation campaign is a winnable fair use argument under §107, even if you are right that the four factors are not “exclusive” and that Court can go beyond the four factors and even devise a new “fair use” affirmative defense. Whether or not there is the makings of a potential “abuse of process” or Posnerian “misuse” of copyright argument or something along these lines is hypothetically an interesting issue to speculate upon for another day, but doesn’t seem to be on the record here and would also presumably require a lot of solid evidence.

• Unconstitutional statutory minimum damages. This seems potentially much more winnable than fair use. But if there is a winnable argument here, it would probably also require lots of evidence to show that a statute that permits an award of up to $150,000 per work in these circumstances and $22,500 per work times 30 works as actually awarded for downloading and supposedly sharing 30 songs that sell for about $0.99 each retail goes so far beyond any possibly valid “deterrent” or “punitive” purpose that it is, on its face, unconstitutional. Unfortunately, the SCOTUS may not see this as self evident. Again, maybe Oberholzer-Gee or Andersen/Frenz could have helped here, and perhaps other experts on the economics of the music industry, how file sharing actually works, how many of the ocean of unauthorized downloads can be causally attributed to Joel, and the overall question of proportionality. Maybe some expert sociological or criminological evidence on “deterrence”. But given the post-Eldred approach to deference to Congress on quantifiable copyright policy matters such as extending the term from life + 50 to life + 70, I would imagine that you would now need a great deal of solid evidence to show that this choice of a numerical range of a minimum of $750 and up to $150,000 per work for willful infringement is not only beyond “arguably unwise” but also somehow clearly unconstitutional. For better or worse, “unwise” and “unfair” may not equate with “unconstitutional.” BTW, there is an important article in the works by Pam Samuelson and Tara Wheatland, which I’m sure you know about, but for the benefit of other readers can found here as a work in progress (recently revised).

Best regards,


PS: August 25, 2009: PS - Prof. Nesson's comments on the above are on his blog here.


  1. Devil's AdvocateAugust 24, 2009 2:14 pm

    I couldn't understand why the RIAA wasn't compelled to prove:

    1) Actual distribution...
    Distribution has not only an "origin" (Joel), but also a DESTINATION (who received it, other than the spying firm?).

    2) Actual damages...
    No documented proof of costs incurred or provable sales losses were offered or asked for.

  2. The “Fair Use” argument you made here HK is extremely relevant. I’ve spent 2 years collecting data in my blog, and through the research I have done, there is absolutely no evidence that can support the music industries claims in revenue losses with respect to file sharing alone. In fact Liebowitz refuted claims found in the Anderson/Fritz study (done for Industry Canada), however not only can Liebowitz be called as an expert witness, so too should research done over at the UNCTAD. One of the UNCTAD researchers personally backed up the Anderson/Fritz study personally by quoting research they have done in comments to Anderson’s response to Liebowitz’s attempt at discrediting the Industry Canada report. Both Anderson’s rebuttal, and the researchers remarks can be found here:

    As Industry starts to get past the evil nature of file sharing and better understand what’s actually taken place, there is a clearer picture emerging on the cycle of creative destruction that most industries are currently faced with due to the digital revolution. PRS for Music in Britain recently reported increased earnings of 13% within the industry as a whole, which does support Zeljka Kozul-Wright comments with respect to identifying the "Creative Destruction" process in the Anderson rebuttal in the above link:

    It is virtually impossible to prove on industries part that in fact a file shared is a sale lost, in fact the burden of proof in Canadian courts lies on the Plaintiffs if memory serves me correctly. What we are starting to see is the birth of a “pay for consumption” model the market is ready for vs the dying model of “pay per copy” as it relates to the digital paradigm. Meaning SAC’s proposal is the most appropriate in the current market. A similar understanding has also been presented by The Institute of European Media Law:

    Eventually industry will have to adapt to this model of consumption. Governments or courts can do very little to force the market back to the way it was in the 90’s. The “the potential market for or value of the copyrighted work” is still there, just shifted to a different model of consumption, which is currently not supported by industry or law and should be! Engaging in the activity of file sharing is basically following what everyone else is doing and where the market currently is located, nobody should not be penalized for it. Legal defense teams in the US have done a very piss poor job at researching this. A lot of the research out there is now close to 3 years old, and could have been applied in the Thomas-Rassat, and Tenenbaum cases. In fact the rulings set out by the court in these cases could serve to hurt these industries if the deterrent actually worked. From the looks of it the P2P networks are emerging as an integrated part of industry wanted or not.

    If this had gone on during the industrial revolution and black smiths were doing what the music industry has done here today, we would have cars with horse shoe’s attached to the wheels. This is ridicules, in large part due to the poor defense of these people the media industries want to make an example of. What’s worse, is I’m not in the legal profession and I can see what’s going on here. Good job HK on the letter!

  3. thanks howard, i've responded on my blog,