October 5th, 2009

Still Fighting Back

Team Tenenbaum has filed an OPPOSITION TO PLAINTIFFS’ MOTION FOR JUDGMENT AND DEMAND FOR INJUNCTION, which pretty much means what it says — or in my attempt at non-legalese: they’re asking the judge, rather than entering the judgment recommended by the jury (which, interestingly enough, she has yet to do), to fundamentally reconsider the validity, context, and conduct of the case against Joel.

Here’s how it opens:

Joel Tenenbaum through counsel undersigned, speaks to a judge of both law and equity, master of the power of the least dangerous branch, see Bickel, The Least Dangerous Branch (1962). We seek to open the Court and the Law to Internet and to preserve the freedom of the people of the Internet Age against the tyranny of copyright. This case is not only about the size of the verdict. Bigger questions are at stake. From the very first the prosecution of this case under Title 17 Section 504(c) was not legal. Congress never considered the effect of the Internet on copyright law as embodied in Title 17 Section 504(c). Congress never authorized statutory damage suits against consumers. At stake here is not only the fate of a young man emblematic of his generation found guilty and sentenced to bankruptcy. At stake for the future is whether the check of fair use on the tyranny of copyright will be taken away from the jury. At stake is our citizenry’s right to a full and fair trial by an empowered jury. At stake ultimately is the proper balance among creative artists, the corporate copyright industry, the federal court, and the rights of the people in the age of Internet.

The defendant deserves a new trial. The Court in the trial just completed committed critical errors on central issues. First and foremost, this case should have been dismissed at the outset because the statute in question does not permit a lawsuit against an individual consumer for statutory damages. Second, the Court committed reversible error when it granted summary judgment against fair use, improperly assessing some factors of fair use, improperly excluding others from consideration, improperly shifting the burden of proving infringement to the defendant, and improperly directing the jury’s verdict that he infringed. Third, in an erroneous and prejudicial application of Rule 408 of the Federal Rules of Evidence, the Court excluded evidence of the defendant’s willingness to take responsibility for his actions and admitted his offer to do so in a redacted form that allowed the plaintiffs to twist it into an unwarranted and damning attack on the defendant’s character. Fourth, in the Court’s final instructions to the jury the Court distorted the jury’s common sense of a “just award” by improperly telling the jury to return a verdict within the legislatively prescribed range.

Given the Court’s failure to address the significant, basic, constitutional issues presented by the case, it is no surprise that the resulting verdict is radically disproportionate to any actual harm the defendant may have caused, and blatantly inconsistent with fairness and justice. The verdict is itself an impeachment of the law and process that produced it. The impermissible and unnecessary injunction sought by the plaintiffs adds further insult to it.

That last bit about the “injunction sought by the plaintiffs” refers to the gag order that the RIAA’s attack dogs are seeking to impose on Joel, hoping to staunch any attempts to share his story with peers and the greater public, among other things kvetching about a tweet that remarked on the “interesting” existence of a torrent reeking of irony and contempt for the RIAA, “DJ Joel: The $675,000 Mixtape,” which collected the 30 songs Joel was found guilty of “infringing” at the tune of $22.5k each. Talk about adding insult to injury.

Although I’m sure most lawyers and blawggers will disagree, one compelling aspect of the brief, for me, is its use of narrative (beyond mere case law), putting both filesharing and the RIAA’s aggressive, unprecedented legal campaign into historical context. I want to highlight one particular passage from the 28 page document, as I think it may be of interest — and perhaps use — to those of us who find ourselves stupefied and horrified by the excessive degree of punishment any ordinary Joe(l) could face simply for downloading and sharing media at a time when the practice is utterly ubiquitous, the damages to the would-be-monopolists of “THE” Music Industry® unproven, and the intent — in the majority of (noncommercial) instances — far from malicious. Allow me to quote in some length, reproducing the emphasis in the brief:

In July 2000, Congress began a process of considering the proper course for copyright law in response to the alteration of the market brought about by the advent of open connected cyberspace. Under the leadership of Senators Hatch and Leahy, the Senate Judiciary Committee conducted a hearing titled, “MUSIC ON THE INTERNET: IS THERE AN UPSIDE TO DOWNLOADING?” This hearing made eloquently clear that Congress was not only aware of but open to incorporating peer-to-peer music file sharing into our national copyright statutory scheme. As the Congressional Record demonstrates, the Senate Judiciary Committee certainly did not view peer-to-peer file sharing as illegal:

Senator Hatch: “Our reasons for holding this hearing are to learn more about what is taking place in the marketplace and, in doing so, better equip us to advance the interests of consumers and creators. Insofar as consumers are concerned, they desire access to downloadable music which is not unnecessarily restrictive or unduly burdensome. I want to ensure that the marketplace provides them with the opportunity to access the music they want to hear over the Internet and to do so legally. Insofar as creators are concerned, I want to ensure that artists and creators are protected through an approach to copyright that empowers them to generate maximum revenue for their creative works. …

“As chairman of the Judiciary Committee, I take it as a basic premise that our copyright laws must play a role, a strong role, in protecting creative works over the Internet. These protections, however, must be secured in a manner which is mindful of the impact regulation can have on the free flow of ideas that a decentralized, open network like the Internet creates. We must protect the rights of the creator, but we cannot, in the name of copyright, unduly burden consumers and the promising technology that Internet presents to all of us.

“With this in mind, it is my hope that we can learn more about the online music marketplace and why there is so much disharmony. We have with us this morning a number of different models of online music services.

“MP3.com shares revenues with artists, often on a 50/50 basis. And we have Emusic, which offers downloads of singles or whole albums, paid for either per song or per album. Emusic has deals with many independent record labels and offers deals to artists that are structured similarly to recording contracts. Both Emusic and MP3.com can track usage levels to accurately account to the artists for use of their music and pay them accordingly. And both Emusic and MP3.com are structured with a central server Web site that makes music licensing relatively easy for creators and consumers. Their organization is similar to the chart on display which diagrams a traditional Web-based search engine, where an individual’s computer deals with information sources through the intermediary of a single server.

“By way of contrast, consider the architecture of the Napster and Gnutella communities, as represented in these schematic charts over on the right here. As you can see, Napster, which is a business, operates with a central server site through which members submit requests. Requests proceed from the central site out to other Napster users. And with Gnutella, there is no central point, but we are linked directly to other Gnutella users’ PC’s. We can download the music directly from any Gnutella users’ computer to which we are linked.”

This organization has implications for both music licensing and for broader Internet technology. To quote Andy Grove, of Intel, ‘‘The whole Internet could be re-architected by Napster-like technology.’’ Using this peer-to-peer technology to search for information on the Internet allows us to get the most up-to-date information direct from the source, as opposed to traditional Web search engines that are made through intermediaries. With regard to music licensing, however, as you might guess from the charts, peer-to-peer file-sharing poses a much greater challenge than single-source licensing. With each user being a publisher to a greater or lesser degree, the relative lack of a real distribution center makes licensing somewhat chaotic and haphazard, which brings us to the nub of this hearing. This technology presents a unique opportunity to those who make a living by producing copyrighted works. They can be selfpublishers dealing directly with their fans. But it also presents a unique threat, if misused, to rob them of their livelihood, which could rob all of us of their continued work by destroying the incentives to create and publish their works, all of which will require much greater creativity in licensing or distributing copyrighted creative works.

“To illustrate the file-sharing technology that has proved so controversial, we will demonstrate how a search and download of music is done using Gnutella. If you will direct your attention to the monitors, you will be able to see the process from a live Internet connection. First, we submit a request for particular music or a particular artist. As I mentioned before, we do not submit the request to a central site, but rather we link directly to other Gnutella users and relay our requests through the individual hard drives of members of the new telecommunity who are online. If you look at the bottom left-hand corner of the screen, you can see how many connections we have made with other users. The search engine returns to us a list of the relevant music files available to us from other Gnutella users, together with information on the size of the file and the other users’ bandwidth, and hence probable download speed. We can choose from among the many options returned which files to download, and can watch the progress of downloading. Since the downloading will take a few minutes, we will return to play the music after the ranking member’s remarks. Once the file is downloaded, because the music is in a digital format, I can copy it onto a number of different listening devices to take the music with me. I think music fans have expressed a strong interest in getting popular, legitimate music in this format. One continuing problem raised throughout the evolution of online music, however, is the complaint that the major record labels have not been willing to license online music distributors to provide their music, or have offered licenses on terms much different than online entities related to those labels.” (U.S. Senate Judiciary Committee Hearing, July 11 2001, pages 1-3.)

The new telecommunity of which Senator Hatch speaks are the citizens of cyberspace.

Senator Leahy then described how his own children download songs and send them to him:

“But when you can move so quickly on some of these sites, and when I go on college campuses, as many of us do, to talk and everybody is talking about what they have downloaded, how they share, and so on, and when my kids pick up a ‘‘Black Muddy River,’’ which happens to be one of my favorites of the Dead, and send it to me—they have heard a new version—and I log on in the morning while I am having my breakfast and there it is, I mean this is a whole different world, and I think we have to recognize that on where we go.”

You can read the whole thing here. In case you’re curious, the argument proceeds as follows:

I. INTRODUCTION
II. BACKGROUND
III. CONGRESS NEVER DECIDED TO REGULATE COPYRIGHT IN THE AGE OF INTERNET BY IMPOSING STATUTORY DAMAGES ON CONSUMERS
IV. THE COURT WRONGLY DECIDED THE ISSUE OF FAIR USE
V. THE COURT IMPROPERLY TOOK THE ISSUE OF INFRINGEMENT/FAIR USE AWAY FROM THE JURY
VI. AT TRIAL THE COURT ERRED BY PREJUDICIALLY REDACTING DEFENDANT’S OFFER OF EVIDENCE THAT HE WAS WILLING TO TAKE RESONSIBILITY FOR HIS ACTIONS, TWISTING IT INTO DEVASTATING IMPEACHMENT OF HIS CHARACTER
VI. IN ITS JURY INSTRUCTIONS THE COURT ERRED BY INFORMING THE JURY OF THE STATUTORY DAMAGE RANGE
VII. THE JURY’S DAMAGE AWARD IS GROSSLY EXCESSIVE, VIOLATED DUE PROCESS, AND SHOULD BE REMITTED
VIII. PLAINTIFFS’ REQUEST FOR INJUCTION AGAINST THE DEFENDANT SHOULD BE DENIED

Wayne&Wax

I'm a techno-musicologist, internet annotator, imagined community organizer.

I left my <3 in the digital global, but I reside in Cambridge, MA, where I'm from.

I represent like that.

wayne at wayneandwax dot com

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