Dispatch August 2009

Music Pirates Will Be Music Pirates

The recording industry may be hoping that the steep damages awarded in its latest file-sharing suit sends would-be pirates a powerful message. But if the attitude of the young man the case has certainly bankrupted is any indication, that message has failed to sink in.
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“They’re like caged animals!” Joel Tenenbaum exclaimed to me, describing the attorneys representing the four major record labels who had brought a lawsuit against him. The lawyers in question could be heard just then enjoying a rousing game of poker in a back conference room.  “They slink around the courtroom, always prepared to attack, and they never give you eye contact!”

The outburst was a rare flicker of animosity in an otherwise lighthearted conversation about keg parties, girlfriends, and courtroom hijinks. Fourth-year Harvard JD-MBA student Debbie Rosenbaum, who was assisting with Tenenbaum’s defense and occasionally serving as his ad hoc PR manager, made a quip about having had to flirt with a court marshal to get her Blackberry in. “A guy could never pull that off,” Tenenbaum retorted. “Did you tell him you’re into handcuffs?”

Tenenbaum was cracking a lot of jokes, after each of which he would flash a broad, close-lipped smile that lit up his entire face. Such incessant cheer made it hard to register that we were in courtroom two of Boston’s Joe Moakley Federal Courthouse, awaiting a verdict that was all but guaranteed to bankrupt the 25-year old Physics PhD candidate.

Tenenbaum was being sued for illegally downloading and sharing copyrighted songs. Roughly 35,000 similar lawsuits have been filed by the recording industry since 2003, but since most defendants end up settling for a few thousand dollars, Tenenbaum’s case is only the second to have made it to a jury trial.

The attorneys representing the record labels alleged that he downloaded and shared more than 800 songs, although he was only being sued for the 30 songs they could most convincingly prove he downloaded. They had offered to settle with him on multiple occasions—initially for $3,500—but the two parties never came to terms, and Tenenbaum opted instead to fight the charges.

At issue wasn’t whether he did it: after initially trying to claim that his sister and a couple friends had downloaded the songs under his name on a family computer in Providence, Rhode Island, Tenenbaum later admitted responsibility, both in sworn depositions and when he took the stand during day four of his trial. There wasn’t even a question of whether his having downloaded the songs was legal (the “fair use” argument his attorney, Harvard Law School Professor Charles Nesson, had originally hoped to use in his defense, was thrown out by the judge before the trial proceedings even started).

The question was simply how much he should have to pay. The judge instructed the jury to decide whether Tenenbaum’s admitted actions had been willful, and based on that, how much in damages should be awarded to the record labels. Since federal statutory law states that damages can range from $750 to $150,000 per song, that meant that Tenenbaum was about to be made anywhere from $22,500 to $4.5 million poorer.

Why, I wondered, did Tenenbaum seem so sanguine? He didn’t strike me as a zealot for the free digital cause. If he were, then why would he initially have tried to blame others for his actions? And while he’s comfortably well off – his father is a psychiatrist and his mother is a family law attorney – he’s hardly heir to an astronomical fortune that would render any potential damages inconsequential.

The best explanation, it seemed, was that he was simply oblivious to the consequences of losing that much money. As Rosenbaum told me later on, “He’s still just a kid. He doesn’t fully realize what all this money means.”

His cavalier attitude was undoubtedly troublesome to the recording industry. After all, each time the industry has threatened to take a pound of financial flesh from a capriciously selected student, it’s taken a high-stakes gamble that the benefit it reaps from the lawsuit’s deterrent effect on others will outweigh any bad publicity it yields. But if the prospect of bankruptcy and bad credit is beyond the comprehension of those inclined to do illegal downloading, then such lawsuits are hardly a deterrent.

And in fact, studies show that lawsuits have done little to stem the tide of illegal music filesharing in the United States. According to one study conducted by Big Champagne, a company that researches filesharing trends for record labels, illegal music sharing actually increased by 100% between September 2003, when the lawsuits began, and April 2005.

Meanwhile, the recording industry’s tactics have generated plenty of negative publicity. The industry has been crucified in the press on a number of occasions for pursuing lawsuits against single mothers, a 13-year-old girl, and even a dead person. So hyperconscious of public perception is Matthew Oppenheim, the lead attorney for the plaintiffs in the Tenenbaum case, that he could be overheard in the courtroom emphasizing to another reporter that the industry has deliberately chosen not to pursue lawsuits against soldiers in Iraq and victims of Hurricane Katrina.

Given all this, it should come as little surprise that the Recording Industry Association of America announced last year that record labels would stop introducing new lawsuits. But industry lawyers are continuing to pursue cases that are already in motion, which means that Joel Tenenbaum is not off the hook.

After three hours of deliberations, the jury returned to announce its verdict. It found Tenenbaum’s actions willful, and awarded the plaintiffs $22,500 per song – a total of $675,000. The recording industry’s attorneys high-fived each other in muted celebration and packed up their briefcases to leave.

Nesson, who had hoped to win the case for the cause of online openness, and whose approach had been zealous but unconventional throughout the proceedings, appeared deflated. His head and shoulders drooped, and he gave only curt, perfunctory answers to reporters’ questions. He says he plans to appeal.

As for Tenenbaum, he raised his eyebrows and frowned ever so slightly, displaying an expression of flustered bewilderment. Was he panicked and distraught, I wondered? Had the recording industry at last gotten itself its chastened negative example?

But his discomposure was fleeting. Within seconds he was smiling and bounding to the visitor’s gallery to hug his mother.

“Do you regret downloading music illegally?” a reporter asked him.

He flashed a sly smile.  “Do I regret drinking underage in college?”

Stephen Bartenstein is a freelance writer in Boston.
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