The Recording Industry Association of American thumped music downloader Joel Tenenbaum at trial, and now the RIAA wants him to act the repentant sinner?Â Michael Vick volunteered to do penance by helping with the anti-dogfighting campaign of The Humane Society of the United States, but if he hadn’t done so, would he have been back in court?
From the Chronicle of Higher Ed:
In August, a person upset about the courtâ€™s decision posted the list of the songs named in the case on The Pirate Bay, a Swedish file-sharing Web site, encouraging others to download them in protest. A picture of a defiant-looking â€œDJ Joelâ€ accompanies the list, advertised as â€œapproved by the RIAA.â€ A link to a blog gives a rationale for posting the track list: â€œI wanted to let the RIAA know that I too downloaded those songs. I wanted to let them know: they cannot fight the sharing with violence. We will download. We will share.â€Â …
Mr. Tenenbaumâ€™s legal team noticed people downloading the track list and posted a note on Twitter in mid-August: â€œinteresting: a ‘joel’ torrent list of the 30 songs is now on thepiratebay/other torrent sites and is being DL widely in protest.â€
Cara Duckworth, the RIAAâ€™s vice president for communications, said in an interview on Thursday that the message is â€œa clear example of him thumbing his nose at the verdict and not taking us seriously.” She said Mr. Tenenbaum is likely not behind the posting on Pirate Bay, but argued that he should not encourage others to look at the Web site. …
On Tuesday, it filed for injunctive relief in a federal court in Massachusetts.
An injunction against what?Â Is this contributory infringement or “inducing” infringement?Â Doubtful.Â Or is it a public comment on a controversial — even notorious — copyright litigation, in which Tenenbaum and his supporters fail to respect the majesty of the RIAA?Â The RIAA’s position seems to be consistent with its earlier post-trial statement that Joel Tenenbaum is akin to a addict whose drug of choice is music:Â “Mr. Tenenbaum is a hard-core, habitual and unrepentant p2p abuser who has caused harm to the music community.“Â It appears that it wants the court to do the equivalent of ordering him into rehab.Â Or at least shut him up.
Today’s Wall Street Journal online reports that the RIAA will no longer sue individuals it suspects of sharing copyrighted music files online. Instead, the RIAA will notify ISPs on the assumption that ISPs will try to stop their users’ behavior. Apparently, the RIAA has agreements with some ISPs. The Journal reports that ISPs will send emails asking users to stop their behavior. If the users don’t stop, the ISPs will slow down their Internet service or eventually cut the service off entirely.
I imagine that ISPs have agreed to cooperate with the RIAA in exchange for some understanding about the ISPs potential liability for user behavior. I wonder, though, if such an agreement undercuts ISP claims against such liability in other cases. If courts have excused ISPs from general, notice-based liability because ISPs cannot practically deal with the large volume of complaints about infringement, doesn’t the ISPs’ willingness to cooperate with the RIAA undercut that reasoning?
Obviously, I’m not privy to the precise arrangements in question, but I can’t help feeling that the ISPs have taken a step down the road towards admitting that they can and will function as the Internet’s police.
In a recently issued opinion, Judge Davis has granted Jammie Thomas a new trial, overturning an earlier verdict holding her liable in the amount of $222,000 for file sharing music over a peer-to-peer network. The specific legal ground for the ruling was an erroneous jury instruction that merely offering a work on a peer-to-peer network is, in and of itself, infringement. Judge Davis has now concluded that without actual distribution, no infringement has occurred.
It’s hard to say whether this ruling would change the outcome if the case is tried again. If Thomas was offering songs over the Internet, there’s a pretty good chance she wound up actually distributing them to someone. At the same time, however, I wonder if the court is sending a message to the RIAA that it isn’t happy with how this case got resolved.
Judge Davis closed his opinion with a statement that Congress needs to change the statutory damages rule that resulted in the large award against Thomas. The judge asserted that the award was far out of proportion to the size of her offense, and that such large awards are really appropriate only against commercial infringers. This language is legally irrelevant to the decision at hand, but it makes me wonder if, should the RIAA choose to retry the case, the judge will take steps to hold down the size of any statutory damage claim.