Tenenbaum 'piracy' case is all over bar the shouting

Nick Farrell
28 July 2009

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WHILE MANY HAD HOPED that Joel Tenenbaum's 'piracy' case might send the music and film cartels packing, it is starting to look like it is already over before it has begun.

This is the second file sharing case to go to trial and the first where Harvard University's best and brightest will take on the RIAA.

But it is now looking like Tenenbaum's legal strategy has been destroyed even before the trial is heard. Boston federal judge Nancy Gertner made a last-minute decision to remove Tenenbaum's proposed Fair Use defence which was really all he had going for him in the case.

Tenenbaum's lawyers wanted the jury to determine whether his acts of alleged infringement constituted Fair Use under the US Copyright Act.

According to Ars Technica, Judge Gertner said that the Fair Use defence failed because it would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and "swallow the copyright protections that Congress has created."

Now Tenenbaum has to defend himself from claims that he committed copyright infringement on thirty songs on the peer-to-peer filesharing service KaZaA. His defence looks to be a bit tricky because he has already admitted using KaZaA to download and share songs.

The music industry will not even have to call controversial Media Sentry testimony to prove infringement.

With this decided the question will then come down to how much cash Tenenbaum should pay to the plaintiff RIAA member companies. This could be between $750 per tune all the way up to $150,000 for each track or a total of $4.5 million.

Judge Gertner seems to be thinking that this case will be where the law on penalties for so-called music 'piracy' will be decided. She has said that should the jury award statutory damages, she intends to hold a separate post-trial hearing to determine whether any such award is so excessive as to violate the US Constitution's guarantee of due process enshrined in the Bill of Rights. µ