RIAA Changes its Tune, But Lawsuits Continue

riaa, piracy, music, p2p, peer-to-peer, lawsuit
To hear Joel Tenenbaum's version of the story, at least, it isn't hard to see why the Recording Industry Association of America's campaign against music piracy has earned the RIAA so many enemies -- perhaps contributing to the trade group's decision this week to stop filing lawsuits against people like Tenenbaum.

Tenenbaum, who turns 25 on Christmas day, is a doctoral student in physics at Boston University. He also is involved in a high-profile legal fight with the RIAA for allegedly downloading and distributing songs belonging to several music labels. The recording companies claim to have discovered more than 800 songs stored illegally in a shared folder on Tenenbaum's computer, although the RIAA's case against him only identifies seven of the songs.

The RIAA says that despite its change in strategy, it doesn't plan to drop existing lawsuits. If found guilty of willful copyright infringement, Tenenbaum faces financial penalties that could exceed $1 million dollars -- $150,000 per song, the maximum fine allowed by the federal statute under which he is being sued.

Tenenbaum is being represented in the case by Harvard University law professor Charles Nesson, who in October filed a counterclaim challenging both the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act and the attempted use of it against Tenenbaum by the music labels.

A hearing on Nesson's counterclaim -- which is much broader in scope than previous legal challenges to the constitutionality of the RIAA's antipiracy campaign -- is scheduled to be held Jan. 22 in U.S. District Court in Boston.

Tenenbaum's run-in with the RIAA began in September 2005, when he was an undergrad at Goucher College in Baltimore. His parents, who live in Providence, R.I., received a pre-litigation notice from Sony BMG, Warner Bros. and other recording companies directing them to contact an RIAA "settlement hotline" and pony up $5,250 for alleged online music piracy involving a computer in their home.

There was little opportunity to dispute the amount or to even question the validity of the allegations made in the letter, according to Tenenbaum. The operators manning the RIAA hotline appeared to have little information or authority to do anything more than simply "just sit there and keeping asking you for your MasterCard or Visa number" to make the demanded payment, he said in an interview this week.

"It's scary when you know nothing about copyright law and suddenly there's this letter that says you're infringing the law," Tenenbaum said. "You don't even know if it's a criminal or a civil matter and if you could end up in prison."

After initial attempts to resolve the issue failed, Tenenbaum said he offered the RIAA $500 to settle the claims, arguing that as a student, he couldn't afford to pay more. That offer was quickly rejected by the RIAA, and Tenenbaum didn't hear anything more from the trade group for nearly two years. "I had no idea why, and I didn't want to know why," he said. "I didn't know if they had decided that we weren't worth it, or if the case had fallen through the cracks."

Those questions were finally answered in August 2007, in the form of a stack of legal documents in which the music companies formally accused Tenenbaum of copyright infringement. He filed a motion in the Boston court seeking to dismiss the RIAA's civil suit. Then, after some "back and forth" between the two sides, Tenenbaum said, he agreed to pay the $5,250 that the RIAA had demanded as restitution for the alleged violations.

But according to Tenebaum, the RIAA refused to accept the settlement offer and instead increased its payment demand, asking him for $12,000. "At that point, I said 'no' because it was no longer a settlement," he said. Tenenbaum contends that the RIAA seems to be focused more on trying to make an example of him than on seeking restitution for any actual damages caused by the alleged piracy.

The counterclaim filed by Nesson includes similar assertions. Apart from asking for the case against Tenenbaum to be dismissed, the filing seeks damages from the RIAA for what Nesson described as an abuse of process. He accused the music industry of conducting a campaign of intimidation and of seeking absurdly excessive financial restitution for alleged copyright violations.

The approach that the RIAA has been taking "creates grotesquely excessive punitive use of civil process," Nesson said this week. "The RIAA actually claims that actual damage is irrelevant, which we claim is unconstitutional."

Cara Duckworth, a spokeswoman for the RIAA, dismissed the claims that the lawsuits filed against Tenenbaum and others are meant to serve as examples. "This case is no different from all of our other cases," she said. "In fact, Mr. Tenenbaum essentially admitted to illegal activities, and we believe that he should be held accountable under the law."

In an interview before the RIAA's decision to stop filing lawsuits came to light, Duckworth said statistics show that music piracy cost the music industry about $3 billion over the last seven years and also resulted in more than $2 billion in lost wages for American workers. Much of that piracy was tied to illegal downloading by college students, she noted.

"A lot of jobs depend on the legitimate sale of music," Duckworth said. "Regardless of how someone feels about our lawsuits, there are real consequences [as a result of piracy]."

The RIAA's lawsuit against Tenenbaum has certainly had consequences for the college student. In September, Tenenbaum was deposed for what he said was nine hours by RIAA lawyers in Boston. He said that during the deposition, he was barraged with questions about every computer he had owned or used, the names of songs he had downloaded and the peer-to-peer software he used. The lawyers even asked him about certain modifications he made to his car in high school because of photos they found on his computer, he said.

The computer at the center of the case has long since been trashed as a result of what Tenenbaum claimed was a burned-out CPU. But, he said, the RIAA has asked for a complete copy of the hard disk in his current computer as well as the ones used by his parents and his sister, who lives in Pittsburgh. He described that request as "a disturbing invasion of privacy."

Tenenbaum's parents and sister have also been deposed in the case, as has a friend in Minnesota who called the RIAA hotline on behalf of Tenenbaum's mother after the pre-litigation notice was sent. "She happened to know copyright law and at some point said something about copyright infringement," Tenenbaum said. "She's a college kid. We had to file an affidavit to get them to stop calling her my lawyer."

As a result of the the RIAA's various depositions, Nesson has had to find local attorneys in three states in order to mount a defense against the piracy claims, Tenenbaum said. He added that Nesson's offer to defend him earlier this year has been a huge deal for him and his family. Prior to that, much of the legal work was being done by Tenenbaum's mother, who is a practicing lawyer but has little knowledge of copyright infringement laws.

Tenenbaum said Nesson's presence also means that he himself no longer has to face the RIAA's battery of lawyers. "They are very pushy, very unpleasant people to deal with," Tenenbaum said, adding that any attempt to push back at the lawyers was immediately portrayed as a lack of cooperation and met with threats that they would inform the judge. "Everything you said, they twisted," he claimed.

The RIAA's own description of events, contained in court filings, paints a slightly different picture. According to the trade group, Tenenbaum's parents received the pre-litigation notice only because a computer that was identified as being involved in illegal music sharing was traced back to their house.

The RIAA says that it rejected Tenenbaum's $500 settlement offer and his claims of financial problems because its investigation showed that he had just purchased a $250,000 condo. And the trade group claims in its legal filings that it made several attempts to negotiate a settlement with Tenenbaum before filing the lawsuit against him.

Tenenbaum said that although online piracy is a problem, the larger issue lies with what he characterized as the music industry's continued insistence on seeing the Internet as a threat instead of as a tool that can transform the manner in which music is consumed.

"I don't think anybody thinks artists shouldn't be rewarded for their work," Tenenbaum said. But there are other ways to do so on the Net that the music industry has stubbornly refused to consider, he added. "They are still operating," he said, "on this outdated assumption of the Internet as a threat, a weapon that is being used against them."

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