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article imageOp-Ed: Abusing the law? $675,000 payout order for sharing 30 songs

By Paul Wallis     May 21, 2012 in Entertainment
Sydney - The Recording Industry Association of America (RIAA) has done it again. A Boston student, Joel Tenenbaum, has been ordered to pay this huge amount of money for sharing a small number of songs. The law is being abused, badly and inexcusably.
The story is familiar enough. Someone shares music online, and is hit with an impossible payout. The RIAA seems to focus on people who commit small file sharing acts. This is probably a policy, building case law precedents as "deterrents" to file sharing. It's turning into a progressively more indefensible assault on the public and owners of music files.
According to the Sydney Morning Herald:
A jury in 2009 ordered Tenenbaum to pay $US675,000, or $US22,500 per song, after the Recording Industry Association of America sued him on behalf of four record labels, including Sony BMG Music Entertainment and Warner Brothers Records.
A federal judge called the penalty unconstitutionally excessive and reduced the award to $US67,500, but the 1st U.S. Circuit Court of Appeals later reinstated it.
The 1st Circuit said a new judge assigned to the case could reduce the award again, but the record labels would then be entitled to a new trial.
Tenenbaum, who said he just graduated Sunday from the university with a doctorate in statistical physics, said he doesn't have the money to pay the judgment.
As usual, the RIAA also seems determined to hit people who can’t pay with massive payouts. This rather ugly pattern hasn’t been remarked upon by the courts or by the media for some reason.
The legal issues
The legals are equally nasty:
1. The net commercial value of the 30 songs is about $60.
2. The degree of financial “injury” to these big global companies and the recording artists is minimal, to say the least. At an average of around $1.99 per song retail, the breakdown of royalties is measured in cents per party.
3. Apparently, no effort was made to recover the actual commercial value of the songs, despite the fact that the recording companies were obviously aware of the file sharing.
4. The method by which the RIAA’s members became aware of the file sharing hasn’t been disclosed. Those methods may involve a breach of privacy or other plaint on the part of the defendant.
5. The basis of assessment of the payout hasn’t been well defined. It looks like the RIAA pulled a value out of a hat.
6. If the songs were obtained legally in the first place, there’s no clear indication of any assumption of innocence on the part of Mr. Tenenbaum regarding his subsequent use of his own property.
7. There’s no indication of any action on Mr. Tennenbaum’s part which could be construed as commercial resale or any other clear breach or abuse of copyrighted materials.
The arguments
The US Constitution specifically forbids “cruel and unusual” punishment. That principle could reasonably be extended to include “insane and greedy” punishment, particularly where there’s no obvious basis for the penalty assessment. The first court got it right even if it was rather generous to the RIAA.
Unlike statutory crime, which would deal with any case of theft quite differently and in proportion to the values of the offense, this is effectively a civil law case in terms of the demand for payout. Is that appropriate? Some would say that if the crime is theft, the value of what’s stolen is a core issue in penalties. You wouldn’t get fined $675,000 for stealing anything else worth $60.
How, exactly, did four major recording companies become aware of the theft of their songs, and instantly form what is basically a class action against an individual? Was there some software in the downloaded songs which told them of the sharing of the files? If so, is that a commercial issue insofar as they failed to warn consumers of this tracking capability? It could be construed as entrapment.
Is a United States court under any sort of obligation, real or imaginary, to uphold a valuation of 11,000 times the value of the subject of any dispute? Is there one law for music files and any old thing for other types of file sharing?
Mr. Tenenbaum, in my view, hasn’t received any sort of benefit of due process or even nominal recognition of the scale of the offense with which he’s charged. He’s been railroaded into a cookie cutter verdict which is tailored to the demands of the plaintiffs. It is entirely inappropriate that any court should be “demanded upon” by plaintiffs in what is basically a petty case of no major significance to the plaintiffs beyond a nasty, self-serving claim of legal principle.
Has a crime or even breach of the reasonable rights of use of a person’s own property been committed?
Or did Mr. Tenenbaum simply give someone some music which he bought and legally owned for them to listen to?
On that basis, any kind of file sharing could be considered a lawsuit in the making if you choose to interpret transfer of information as actionable on principle. There are no terms of sale in any industry, including the music industry, which prohibit gift of any kind of commercial products. The method may have involved sending a copy of a file, which could theoretically require additional payment, but it’s hard to see how it was possible to obtain a value of $675,000 out of the copies.
The RIAA has made what is in my opinion an entirely disproportionate and almost frivolous claim against Mr. Tenenbaum. That claim could also be viewed as unreasonable and vindictive. There is no basis for a court to uphold any penalty over and above the real value of the songs.
This is petty theft at the absolute most, not piracy, which costs the RIAA's members billions per year and about which it has been spectacularly unsuccessful in taking any effective action. The record companies should start demanding the RIAA start taking care of the real problems, not just mounting cosmetic, bitchy court actions against individuals for trivial breaches.
Record companies should also note that if any identifiable breach of privacy was involved in identifying Mr. Tenenbaum's file sharing, a counter suit would be worth millions, and that the RIAA has already effectively admitted its actions by lodging this claim against Mr. Tenenbaum and others.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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