US record labels say that copyright law "isn't working"

Speaking at the Technology Policy Institute's Aspen Forum, The President of the Recording Industry Association of America, Cary Sherman, has said that the current U.S. copyright law "isn't working" for content owners and contains a number of loopholes - the main one he objected to is, of course, the safe harbour protection given to internet service provides (ISPs), web companies and telecomms providers. According to CNet, Sherman said the 1998 Digital Millennium Copyright Act "isn't working for content people at all," saying "You cannot monitor all the infringements on the Internet. It's simply not possible. We don't have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare." Sherman added that YouTube is doing a good job of filtering and removing copyright-infringing videos but added that Google could do much more than simply having YouTube remove videos making the example thsat "If you enter in "Beyoncé MP3" as a Google seach the "the chances are, the first thing you'll see is illegal sites." In response Lance Kavanaugh for YouTube, said that the DCMA is working exactly as Congress intended it to. "There's legal plumbing to allow that to happen, to allow those small companies to innovate without [the] crushing fear of lawsuits, as long as they follow certain rules," he said. "Congress was prescient. They struck the right balance". Youtube recently avoided liability in a case brought against them by Viacom, owners of MTV, for hosting MTV content without Viacom's permission because they operated a take-down system although Viacom plan to appeal the decision.

Sherman's comments, on an Act which was heavily lobbied over by ISPs, internet companies and the content owners - is based on the growing concern that the Act contains real and dangerous loopholes (well, dangerous for content owners) which allow ISPs and other web-based companies to ignore online copyright infringement without any legal comeback - although despite his concerns, Sherman added that he did not see new legislation as the solution to this at this stage - preferring to reach agreements with web firms directly. He explained: "We're working on [discussions with broadband providers], and we'd like to extend that kind of relationship - not just to ISPs, but search engines, payment processors, advertisers. But Sherman then added "if legislation is an appropriate way to facilitate that kind of cooperation, fine" saying it may be necessary for the U.S. Congress to enact a new law formalizing agreements with intermediaries such as broadband providers, Web hosts, payment processors, and search engines - one presumes the RIAA are contemplating asking the US legislature for new laws along the same lines as the various "three strikes" laws passed in the UK, France, Taiwan, South Korea and New Zealand.

The RIAA have also signed up to a new letter sent to Google and US ISP Verizon regarding their recent announcement on so called "net neutrality". The consortium of American content owners which included indie labels body A2IM and collecting societies BMI, ASCAP and SESAC, called on the two web giants to add cracking down on piracy to their joint mission.

Interestingly in related news, online advertising firm Triton Media is being sued by several movie studios for "contributory" and "induced" copyright infringement, over its alleged dealings with unauthorized websites offering their content for free. Disney and Warner Bros filed suit against Triton, alleging the firm helped websites like PirateCity.org and Watch-Movies-Links.net profit from piracy by handling their advertising sales. The studios said the advertising agency knew the sites were offering unauthorized content because they sent notices to Arizona-based Triton. The lawsuit seeks an injunction against Triton providing advertising services to the sites in the future, and unspecified monetary damages.

In other RIAA news, Joel Tenenbaum, the Boston University graduate student who lost his case against the recording industry for illegally downloading and sharing music has said that he will be appealing a federal judge’s order that he pay four record labels $67,500 in damages for copyright infringement, even though that amount is only a tenth of what a jury said he should pay for copyright infringement on 30 songs. The original order was a whopping $675,000. “Sixty-seven-and-half thousand dollars only sounds reasonable because it was so much before’’ said the 26-year-old former Providence resident, who then added that he would have to declare bankruptcy if forced to pay the smaller award. His lawyer, Harvard Law professor Charles Nesson, has filed a one-page notice saying he will appeal with the US Court of Appeals for the First Circuit. Nesson said in an interview that he plans to challenge several rulings Judge Nancy Gertner made at trial, including her refusal to let jurors hear that Tenenbaum offered to settle the labels’ claims against him in November 2005 for $500. The four record labels who brought the action (Sony BMG, Warners, Arista and Universal) have filed a similar notice and RIAA spokeperson Cara Duckworth said in a statement yesterday that the labels “had no choice but to appeal the erroneous and unprecedented decision’’ by Judge Gertner on July 9 to slash the award by 90 percent". “The ruling casts aside a jury verdict squarely within the range established by Congress and clearly supported by the undisputed harm to the recording industry and the egregiousness of the defendant’s conduct,’’ she said.

http://news.cnet.com/8301-13578_3-20014468-38.html
http://tinyurl.com/29326mq (Hollywood Reporter)
http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum

Has Nesson turned the tide ......

Harvard Law School professor Charles Nesson, who along with a team of his students is defending Joel Tenenbaum, the post graduate student ordered to pay the recorded music industry the combined sum of $675,000 for downloading and sharing songs online has asked a federal judge to reduce the penalty or order a new trial. Nesson’s latest argument is that Tenenbaum only caused the companies to lose a total of $21 when he failed to pay 99 cents charged online for each of the 30 songs in question – and this should be the limit of his damages. Tenenbaum, a Boston University student admitted to downloading music and was penalised in July after being found guilty of violating copyright rules for downloading songs between 1999 and 2007 (see previous blogs on this site). His lawyers have appealed against the "severe" and "oppressive" damage award, asking that it be reduced to 99 cents for each song. The recording labels have described Tenenbaum as a "hardcore" infringer. Interestingly I asked my own students about the latest appeal and a straw poll revealed that sympathy had actually swung to the record labels! The idea of a ‘infringe now, pay iTunes if you are caught’ policy really did strike them as somewhat preposterous – it would be fascinating if Nesson’s defence actually sparks sympathy for the Recording Industry Association of America, routinely reviled and mocked in the blogworld for ‘suing its own customers. Times, they are a changin!
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/23/AR2010022305114.html

U2 can appeal, Mr Tenenbaum

Joel Tenenbaum, who was ordered to pay $675,000 for infringing 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive - the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is of course well within statutory limits. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs.

Now Charles Nesson, Tenenbaum’s attorney and Harvard academic (pictured in a rather fetching turtle neck ensemble) wants U.S. District Judge Nancy Gertner to reduce the damages to the minimum $750 a song or give the Boston graduate student a new jury trial saying “Given the fact that Tenenbaum was one of many millions of people sharing music and that the plaintiffs have failed to show any actual damages from Tenenbaum’s particular actions, this award is obviously “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable”. It is fair to say that the Recording Industry Association of America (RIAA) has now wound down its high profile campaign to sue individual file sharers and downloaders, but this doesn’t detract from the fact that Tenenbaum was convicted on his own admission and the jury’s award well within statutory parameters. It seems likely that whilst the judiciary may be unhappy about the level of damages awarded in both these cases, it is unlikely to take a proactive role in reducing them – leaving this to Congress. As for Congress, as the movie, television and music industries continue to ask for greater protection, it seems unlikely that the legislature bow to pressure to reduce statutory penalties. Nesson is also asserting that Tenenbaum’s 2004 file sharing on Kazaa and Limewire was protected by the US fair use doctrine — a suggestion that online file sharing is permissible. In Tenenbaum’s Massachusetts trial Judge Gertner would not allow this defence to proceed and quite frankly it’s hard to see why this would be allowed to proceed in a second trial. Dowloading files without paying is surely never going to constitute ‘fair use’.

In fact it seems likely that countries will in all probability move to stregthen rather than loosen copyright protection. In the US, the RIAA, the Motion Picture Association of America and others are lobbying Congress and internet service providers to adopt a “three strikes” policy in which internet access would be cut off for repeated infringement. This legislation exists in Taiwan, in New Zealand and (nearly it seems) exists in France – and has been included by Business Secretary Lord Mandelson in the Digital Economy Bill which is in the committee stage the UK. This week U2 frontman Bono heralded the intervention of the movie industry as a potential savior for the ailing music saying that file swapping and sharing hurt the creators of cultural products. Bono argued “the only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files” pointing out that “the immutable laws of bandwidth” indicate that technology is just a few years from allowing viewers to download entire movies in just a few seconds adding “A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators—in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales”! Interestingly the singer pointed out that the US effort to stop child pornography and China’s effort to suppress online dissent indicate that it is “perfectly possible to track” Internet content and felt that the movie and TV industries may succeed where the music and newspaper industries have failed saying “Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product”.

ISP TalkTalk's head of regulation Andrew Heaney responded by telling reporters: "It is outrageous to equate the need to protect minors from the evils of child pornography with the need to protect copyright owners. As a society we have accepted that it is appropriate and proportionate to intrude on people's internet use by blocking access to sites that host child abuse images. To suggest that sharing a music file is every bit as evil as child abuse beggars belief" adding "Bono obviously does not understand how simple it is to access copyright protected content without being detected. P2P file-sharing can be spotted (albeit at great cost) but there are dozens of applications and tools out there which allow people to view content for free and no amount of snooping can detect it". ISPs currently argue that it would cost each and every ISP customer about £25 a year to reimburse ISP’s for tracking and stopping net piracy.

http://www.wired.com/threatlevel/2010/01/riaa-verdict-is-unreasonable/
http://www.manilatimes.net/index.php/tech-times/8976-u2s-bono-calls-for-control-over-internet-downloads

Tenenbaum filesharing trial opens in Boston

It’s not being streamed live but the Joel Tenenbaum file sharing case in the USA is certainly making the headlines. Tenenbaum, the 25 year old college student accused of illegally downloading and sharing music online, is in the public eye not least because of the ‘flamboyant’ (elsewhere described as ‘rambling’) presence of Harvard law professor Charles Nesson who opened the defence by holding up a rectangular piece of plastic foam wrapped in cellophane which he said represented the compact discs that record companies sold before digital music became available online. He then sliced open the wrapper with scissors and hundreds of tiny jigsaw pieces fell in a pile in front of the jury in US District Court in Boston with Nessom saying “You have the ability to share, and this physical object’’. The 70-year-old professor then paused and snipped open the foam commenting “suddenly broke into a million bits. Here it is. Bits. . . . Can you hold a bit in your hand? You can’t. . . . And suddenly you have songs being shared by millions of kids around the world.’’

Tenenbaum no longer denies that he shared music illegally but Nesson said his client was “a good kid’’ who admits using file swapping network Kazaa to share songs online but says he did it only because of his he love of music, not to make a profit saying "He was a kid who did what kids do and loved technology and loved music” adding “the Internet was not Joel's fault …. the internet sweeps in like the way the automobile swept into the buggy industry".

Timothy M. Reynolds, who represents four major record labels which are plaintiffs in the trial, said damages to the industry from free file-sharing are enormous and imperil “real people,’’ ranging from sound engineers to talent scouts saying “The defendant knew what he was doing was wrong at each step of the way, but he did it anyway,’’ said Reynolds, who added that Tenenbaum continued sharing music files on other peer-to-peer networks even after the recording industry filed suit. He also pointed out that Tenenbaum didn't initially admit he was the person using Kazaa at his IP address alleging that the student "tried to blame others for his conduct - he didn't take responsibility" and initially tried to pin blame on his friends, his sisters, a foster child living with his family and even a "burglar".

Wade Leak, a senior vice president at Sony and deputy general counsel, testified that illegal file-sharing has cost record companies profits and made it harder to nurture new artists, citing Bruce Springsteen as one performer who became a star only after releasing a couple of modestly successful records and Reynolds added that "The exact amount of harm is incapable of exact proof. But make no mistake about it: the defendant's activities caused significant harm". Nesson has said that the record industry is simply making an example of Tenenbaum’s activities - which are common practice amongst youth across the US saying "Everyone could download [songs] for free … and millions and millions did. Joel was one of those millions. In his way he's like every other kid. There's nothing that distinctive about Joel".

The final witness of the day was Tenenbaum's father, Dr Arthur Tenenbaum, who was called by the RIAA to testify and who told the court that he had once called his son at college, in 2002, to warn him he may be sued if he continued to use the P2P client. He told the court his son responded: "You only get sued if you do it a lot". The trail judge, Nancy Gertner, has already ruled out any form of ‘fair use’ defence and with the admission of guilt it is difficult to see what Nesson will achieve beyond perhaps minimising damages - but with a jury, who knows! That said, in the recent Jammie Thomas-Rasset trial the jury awarded dmages of $1.92 million. The case continues, with Judge Gertner saying she would like it all wrapped up by Friday.

http://www.boston.com/news/local/massachusetts/articles/2009/07/29/opening_statements_made_in_civil_suit_over_swapping_songs/
http://news.cnet.com/8301-1023_3-10298079-93.html

http://copyrightsandcampaigns.blogspot.com/2009/06/gertner-nixes-barlow-as-tenenbaum.html

Photo: Professor Charles Nesson in his trademark turtle neck top