Despite media attention that suggests otherwise, the number of cases brought by Recording Industry Association of America (RIAA) members against their customers that have actually gone to trial can be counted on one hand. One of the most recent of these is the trial of Joel Tenenbaum, the case that set itself up to be the definitive challenge against the flawed legal reasoning perpetrated by the RIAA’s million-dollar legal stormtroopers. Unfortunately, it’s turned out to be a frustrating farce that squanders the efforts being made to assert individual rights in a digital age.
When I found out that Joel Tenenbaum was going to be defended pro bono by Harvard Law professor Charles Nesson and his students, I was ecstatic. I thought that having some of the best minds at work defending this case would be one of the best chances to shut down the RIAA’s litigation-based business model that has been terrorizing ordinary people for over five years.
Instead of delivering on mine and others’ hopeful expectations for the case, “Team Tenenbaum” treated the case like a party game, failing to follow even basic rules of legal practice and pulling a defensive strategy from philosophy instead of the law. It quickly became clear that despite the inspirational pieces by PR frontwoman and law student Debbie Rosenbaum, this defense was going to be a joke. Yet the extent of the Tenenbaum Circus went even further than we expected or feared.
There are a number of very clear legal issues with the RIAA’s theory and practice of gathering evidence, and not a single one of these issues got adequately raised. When the defense’s left-field stance got tossed out by Judge Nancy Getner, it was obvious the case was lost. On top of that, Joel himself took to the stand and admitted not only to “doing it” but also to lying under oath during written deposition. Not surprisingly, Joel got slapped with $650,000 in damages owed.
Even with this verdict, it seemed like adequate grounds for an appeal on the constitutionality of extreme damages for noncommercial infringement, much like the current appeal of Thomas-Rasset. Perhaps this was part of the strategy all along. But “Team Tenenbaum” still had one more disastrous failure of reason up its sleeve. They began encouraging a campaign to collect money from the community to help him pay off the RIAA. After being soundly denounced by Recording Industry vs. The People’s Ray Beckerman, they reversed course; funds now will be used to help compensate his defenders. In my opinion, the more appropriate place to contribute funds is to the Free Software Foundation’s expert witness defense fund, which helps RIAA victims retain professionals to debunk their phony “evidence.”
The Culture Wars of the naughties haven’t been about individual cases at all. The RIAA’s litigation campaign has been a desperate attempt to turn back the clock and force the public to accept analog rules in a digital age. In their own words, those who disagree must be “taught a lesson,” the verdicts coming down hard and mercilessly, so that when ordinary college students are approached with “settlement offers” of several thousand dollars, they’ll simply pay up.
I’m not the only person who believes that the erosion of corporate media as it exists today is all but complete, that we are eventually going to see independent distribution models flourish in a Darwinian victory. The question is really how soon this is going to happen, and how much pain ordinary people are going to have to suffer before front organizations and dishonest collecting societies rest safely in the grave.
Our victories happen quietly, in the plank-by-plank dismantling of the RIAA legal platform in courtrooms in the US and abroad, in the explosion of filesharing across all demographics, and the gradual collective understanding that a global internet has returned power to We the People. Their victories happen in exorbitant fines, shutdowns of specific websites, and in nurturing fear in individuals. Hollow as they may be, this victories ring loud and long, and that is why a failure like the Tenenbaum case is so frustrating.
Every instance like this is more fodder for countless puff pieces, paid-for industry “studies,” and fierce lobbying of government officials. The significance of Joel being “busted” is not lost on industry moguls. They will make sure as many people as possible know it in an attempt to cultivate the notion in regular people that “this could be me next, so I’m better off just doing what they say.”
While I firmly believe that in the long run it will not matter, “Team Tenenbaum” has handed a victory to the RIAA on a silver platter that they can mercilessly squeeze to delay the inevitable just a little bit longer – and that’s been their secondary goal all along. They’d love to see the digital world locked down with analog rules permanently, but failing that, they’ll settle for delaying the full bloom of the Digital Age just one more generation, one more fiscal year, one more quarterly report, giving the people at the top a bit more time to stuff their bank accounts at the expense of the world’s artists.
“Team Tenenbaum” should be ashamed of itself, from Joel himself to Professor Nesson. They had the opportunity to ding the RIAA legal juggernaut and they squandered it, demonstrating that “Joel Fights Back” was nothing more than a catchy slogan, creating further difficulty for other victims currently embroiled in legal struggles, providing ammunition for the copyright lobby’s media carpet-bombing, and proving to students everywhere that Harvard Law is actually just a name.
Was it good for you, too?
While I agree the case was a joke I have a few comments.
We often despise the RIAA, but what would come in it’s place. Do you really want physical media that comes encrypted like DVD/BD? That’s what will eventually happen thanks to rampant and blatant piracy of the product. I’m sure they would do it now if they could get away with it. While imperfect, copyright law is absolutely necessary for the long term survival of the media that we have all come to love over the past 50+ years.
As for the appeals I don’t know how much relief they will get from the courts. Beckerman’s theory on awards only stands up to scrutiny if you believe that statutory awards are the same as punitive awards. Statutory excessiveness has to first be weighed against congressional intent; did congress have a legitimate reason to set the levels as they did? I feel it’s very unlikely that the courts would invalidate a major section of the copyright stature because some Gen Y with an entitlement complex got caught sharing music.
My best hope in the courts is the long shot Doe case in Albany since that may skewer the shotgun lawsuit and pre-notification discovery that has kept the costs so low for the RIAA’s lawyers to start these suits.
We also need policy change and that can only come via congress and lobbying efforts, they are the only ones that can truly stop this abuse of the system.
Hey Eric, thanks for reading.
I’m not entirely clear as to what you’re saying in your first paragraph. Are you worried that without the RIAA, there would be a worse organization? I think it’s becoming pretty clear that these kinds of “trade organizations” are not only unnecessary, but also harmful to the artists they claim to represent.
There can always be a personal incentive to create, so even if there was no way to ever get paid for art at all, people would still make music. Yet it isn’t that bad at all – there is actually a robust market for music right now, just not recorded copies of music. The in-touch artist today will send their recordings around for free as much as possible, because each listener is a potential fan. Fans buy concert tickets, merchandise, give donations to help the artist make more music, etc. That’s how you win in the digital age, not by signing your rights away to a corrupt organization that pads the bank accounts of executives with money collected via your work.