< The End of the Line


Friday, July 26, 2013

BOB GARFIELD:  So there’s a growing acknowledgment that punishing individuals won’t stem piracy. But cast your mind back a decade or so ago, and you’ll recall that the RIAA, the Recording Industry Association of America, spent years pursuing and suing individuals for illegal sharing and downloading music. The group sent out letters to some 30,000 mostly young people, offering them a choice between settling for a few thousand dollars or a court battle. Those threatened almost all chose to settle. One kid, who illegally distributed thousands of songs, including this one and the ones you’ll hear in the next report didn’t settle. OTM Producer Chris Neary has the story.

CHRIS NEARY:  Now, the RIAA wasn’t planning to cash in with these settlements. A couple of thousand dollars was not the cure for the industry’s plummeting profits. No, the settlement was merely intended to sting infringers and scare potential infringers. Here are a few old clips from college news services.


YOUNG WOMAN:  I was like - what is RIAA? So then I opened it and, you know, then it read like, you know, basically you’re being sued by the recording industry. And then I was just like, uhh, oh my God, you know!

YOUNG MAN:  Last night I talked with the RIAA and was able to come to some sort of an agreement. I’ll have to pay them $3,000 over the next six months. I mean, I probably got away easy ‘cause in the past I have downloaded music, and $3,000 probably covers it. I probably will never download music illegally again.

CHRIS NEARY:  Obviously, they settled. The recording industry had subpoenaed their Internet records, and it was worth a few thousand dollars to avoid a court battle. The students were outgunned, and they knew it.


JUDGE NANCY GERTNER:  I had the distinction of being the judge with all of the file sharing cases in the District of Massachusetts.

CHRIS NEARY:  That’s Nancy Gertner. Today, she’s a law professor at Harvard.

JUDGE GERTNER:  It was an extraordinary array of lawyers for the record companies who would sit at one table, and then individual A, B or C coming with his or her mother or a friend sitting on the other side, unrepresented, and frequently having not the slightest idea what the proceedings were about.

CHRIS NEARY:  Gertner took the unusual step of holding conferences in her courtroom with a dozen or more students, where she’d explain what was happening.

JUDGE GERTNER:  I didn't know what else to do. In about 2006 or ‘7, I began to offer a list of lawyers for people to use, pro bono lawyers, so that they could be represented, if they chose to be represented. All of this was basically just to try to level the playing field.


CHRIS NEARY:  One student who got a pro bono lawyer. is still in litigation, ten years after he received his first letter to settle. He’s the last man standing in this battle. The judgment against him currently stands at $675,000.

JOEL TENENBAUM:  My name is Joel Tenenbaum, and I am a researcher at Boston University Department of Physics.

CHRIS NEARY:  Back in the nineties, Tenenbaum put thousands of songs on peer-to-peer networks. Ultimately, the RIAA, who declined to comment for this report, sued for just 30 songs. How does he feel about those songs now?

JOEL TENENBAUM:  They were probably picked among like the most popular songs they could possibly pick and so now, of course, they’re completely and entirely played out. So I can’t really listen to them anymore.

CHRIS NEARY:  I asked Tenenbaum why didn’t he just settle when he had the chance.

JOEL TENENBAUM:  I think it’s a ridiculous question. I think that that’s like going to a schoolyard, seeing a bully beating up a little kid and  thengoing to the little kid and saying, “Why

do you keep getting beat up?”

CHRIS NEARY:  Tenenbaum’s pro bono lawyer is Charles Nesson, regarded as a legendary thinker on copyright. He’s also regarded as an eccentric. In the student lounge, Tenenbaum explained how Nesson prepared him for a deposition.

JOEL TENENBAUM:  There’s the judge who is the King and the lawyers, who are the wizards. And the wizards will conjure up all sorts of spells and attempt to persuade the King. Your role in all this is the farmer, and you have a goat. And you’re sticking to it, and that’s your goat. And you can just watch the wizards perform their various acts. I was like, oh, okay. And then I called up my mom and I said, “Mom, what do you think he meant by [LAUGHS] that?”


CHRIS NEARY:  Early on, Tenenbaum didn’t help himself. While answering written questions from the RIAA, he suggested that other members of his family might have been responsible for the songs on his hard drive. Then during that deposition, he lied.

JOEL TENENBAUM:  I mean, I admit that I probably said misleading things. I thought it was the, the best decision, at the time.

CHRIS NEARY:  Finally, in open court, he did take full responsibility for all that downloading and sharing. But his behavior damaged his case, and observers say it hurt him with the jury. And even though he was standing up to the whole recording industry, the media didn’t see him as the good guy in the story. But his lawyer did.

PROF. CHARLES NESSON:  Well, Joel, to me, is a man of a piece with Aaron Swartz and Dan Ellsberg and Manning and Snowden. He’s an individual who chose to challenge what he saw as injustice.

CHRIS NEARY:  If that seems like a little much, you should know that 40 years ago, Charles Nesson defended legendary leaker Daniel Ellsberg in the Pentagon Papers trial. That was a very public case, and Nesson wanted the same publicity for Tenenbaum. So he broke a state law by recording and posting a conference call with opposing counsel, and he argued strenuously, unsuccessfully, to have the case streamed on the Web. Getting the story out there, Nesson reasoned, would turn the public against the recording industry.

PROF. NESSON:  The idea of an open defense was just what we wanted. We have nothing to hide. That was the thought.

CHRIS NEARY:  Has that worked?


CHRIS NEARY:  Professor Nesson gave this very theatrical performance. Ben Sheffner covered the trial. Now, he’s the vice president of Legal Affairs at the Motion Picture Association of America, but he spoke to me as a former journalist.

BEN SHEFFNER:  He brought in sort of a Styrofoam cube and he sort of crumbled it, and it sent pieces of Styrofoam flying all over the courtroom, and he explained that this was his illustration of the changes in the music industry throughout the – you know, the ‘90s and the 2000s, that, that the exploding bit of Styrofoam was a representation of a CD sort of being atomized into individual songs.

CHRIS NEARY:  Nesson's argument hinged on a novel application of the fair use doctrine, that since Tenenbaum’s generation didn't have a way of legally getting digital music in the early 2000s, its downloading and sharing wasn't copyright infringement. But because he hadn’t told the court he planned to launch that defense, under the rules, he wasn't permitted to present it.

PROF. NESSON:  The issue that I wish I had been better at crystallizing was the limited nature of the damage that Joel did. They succeeded in making themselves the victim of what everyone had done and of pinning it on Joel. I somehow should have been better able to protect him.


CHRIS NEARY:  After Tenenbaum admitted to downloading the files, the only thing left was sentencing. The jury ruled he should pay $22,500 dollars for each of 30 songs. That’s where that $675,000 number comes from. The key thing to understand is that the RIAA sued him for statutory damages, not actual damages. Ben Sheffner.

BEN SHEFFNER:  Under statutory damages, the copyright owner does not actually have to show how much actual damages they incurred. In a lot of circumstances, it’s difficult or impossible to figure out exactly how much in actual damages a copyright owner has lost. And, and that’s especially true on the Internet.

CHRIS NEARY:  With no way to measure the actual damages in this case, the judge instructed the jury to choose a number between $750 per song and $150,000 dollars per song, a range laid out by Congress in the Copyright Act. If they’d gone with the max, he would have owed $4.5 million dollars. So that $675,000 number, that number actually shows leniency by the jury.

After the decision, Gertner reduced the verdict to $67,500, but she was overturned when the record companies objected to a judge reducing the jury's penalty.

JUDGE GERTNER:  I somehow believed, and continue to believe, that underneath all of our laws and all of our statutes, there is a principle of fairness.

The verdict in the case seemed demonstrably out of whack with what the companies had lost, what Tenenbaum had gained, whatever the measure, the traditional measure of damages have been.


CHRIS NEARY:  In June, Tenenbaum and Nesson lost an appeal on the judgment. They’ll appeal again. Tenenbaum says he’ll probably have to declare bankruptcy.

The RIAA has long since stopped suing individuals, but critics of the judgment say that unless Congress narrows that huge penalty range or draws a distinction between people who make money by infringing and those who don't, like Joel Tenenbaum, this will happen again in other corners of the Internet. A Chicago law firm has been obtaining the ISP records of people who have infringed on copyrighted porn. Those illicit downloaders are now being presented with their choice, settle for $4,000 or face that penalty of up to $150,000 per infringed work, after a battle in open court.


If jurors didn’t have much sympathy for Joel Tenenbaum, how are they going to

feel about someone who’s been sharing porn? For on the Media, I’m Chris




Judge Nancy Gertner, Charles Nesson, Ben Sheffner and Joel Tenenbaum


Chris Neary