The Music Business Trial of the Year

Hosted by

This is Celia Hirschman with On the Beat for KCRW.

I can imagine that when Joel Tenenbaum downloaded seven songs from a file-sharing service, he didn't think it would be a big deal. He probably didn't think allowing that service to share his seven songs with others was a big deal either. And I'm certain he didn't think he'd end up in the middle of a high-profile copyright lawsuit. He was wrong. The Recording Industry Association of America (RIAA) is suing Tenenbaum for punitive damages. If the court finds willful infringement of copyright, they could award the RIAA up to $150,000 per track.

The case has attracted a lot of attention, and has required legal and political minds to pick sides. First, renowned Harvard law professor Charles Nesson signed on as Tenenbaum's attorney against the RIAA and last week, the US Department of Justice announced their support of the RIAA argument.

Professor Nesson and his team of Harvard law students will question the constitutional status of punitive damages. They'll argue the extent of the damages from downloading is ambiguous and unfair. For the seven songs downloaded and shared, the penalty could range anywhere from $250 to $150,000 per song. Nesson says is that if Joel is found guilty, whatever financial penalty the court decides will be inherently flawed; because it attempts to factor in all the other downloaders that Joel potentially shared these songs with - something that is impossible to prove. To consider the argument a different way, imagine receiving a ticket for not putting money in a parking meter. But instead of getting a $50 fine, your ticket is for thousands of dollars, representing an estimate of anyone who parked in that space without paying the meter. That's virtually the RIAA's argument. Joel is on trial not only for himself but also for all the individuals who may or may not have downloaded from him. If found guilty, the RIAA may argue to apply up to thousands of times the price of the song, just to deter other potential downloaders. Professor Nesson argues that an individual guilty for the crimes of many, is “cruel and unusual punishment” and really has no legal or ethical place in court.

The thin silver lining in this story is that the RIAA has decided to change their approach in handling the illegal downloading crisis. Instead of suing individuals, they are now teaming up with Internet Service Providers (ISP's) to send out warning letters to violators. Last week AT&T joined Comcast, and Cox in sending escalated warning letters to illegal file-sharers. The ISP's will not be sharing violators' names with the RIAA, and will not be disconnecting Internet service. I can't imagine how successful this strategy will be.

Regardless, the new tactic comes too late for Joel Tenenbaum's case, and the other 133 pending cases like his. The Tenenbaum trial resumes Wednesday, April 8, when the judge will decide whether or not to allow live webcasting of the proceedings. The RIAA is stridently fighting this, while 14 news organizations including the New York Times, NPR, the Washington Post and Reuters have filed a brief with the judge, supporting the webcast.

It's no wonder the RIAA has changed their strategy. By suing individuals they have only managed to make martyrs out of people like Joel and enrage the rest of music fans.

This is Celia Hirschman with On the Beat for KCRW.