Intellectual Property Law

RIAA File Sharing Trial Begins ? Update

By David Kravets

Trial for the nation’s second file sharing defendant to go before a jury is beginning Monday in Massachusetts. The outcome is already shaping up to resemble the only other file sharing trial, which ended in a judgment in favor of the Recording Industry Association of America.

That’s because hours before opening statements were scheduled for late Monday, a federal judge in the case effectively gutted defendant Joel Tenenbaum’s defense. The 25-year-old Boston University student, represented by Harvard University professor Charles Nesson, claimed he had a fair use right to share copyrighted music on the file sharing network Kazaa.

U.S. District Judge Nancy Gertner, ahead of jury selection, rejected that defense. “It seems clear that some portion of paying consumers would shift to free downloads if this activity were deemed a fair use,” Gertner ruled.

It’s an important ruling. Tenenbaum has admitted that he shared songs on Kazaa, and was clinging to the fair use defense. The RIAA detected as many as 800 copyrighted works in Tenenbaum’s open share folder in 2004. He is being sued for 30 songs and faces a maximum penalty of $150,000 per recording, according to the Copyright Act.

The RIAA has issued about 30,000 lawsuits during its nearly 6-year-old litigation campaign against file sharers. Most have settled out of court for a few thousand dollars. The record labels have said they are ending the campaign, and are now working with ISPs in a bid to disconnect repeat music file sharers.

Given that the RIAA is changing course, the significance of the Tenenbaum case is likely public relations. Online piracy is running rampant ? and no matter the case’s outcome, it’s likely to continue.

Up until Tenenbaum, the only other RIAA defendant to go to trial was Jammie Thomas-Rasset. Her second trial, after a mistrial, resulted in a $1.92 million jury verdict in favor of the RIAA last month. The Minnesota woman’s defense, which jurors did not buy, was that she didn’t do it, that she was a victim of a hack or crack, or that her children were the culprits who shared the 24 songs in question.

Our sister publication, Ars Technica, is providing Tenenbaum case coverage via copyright attorney Ben Sheffner.

UPDATE: Jury selection lasted all day. Opening statements are to begin 9 a.m. Tuesday.

See Also:

• RIAA Seeks Web Removal of ‘Illegal’ Court Recordings
• Judge Mulls Sanctions Against Berkman Center Founder
• Berkman Center Founder Denies Pretrial Shenanigans
• Court Bars RIAA Trial Webcast
• File-Share With Immunity: Go to Harvard
• New Jammie Thomas Lawyers Vow to Put RIAA on Trial

Full post as published by Threat Level on July 27, 2009 (boomark / email).