For Joel Tenenbaum, years of battling the music industry have come down to a question of money. How much will the Boston University graduate student have to pay for illegally downloading and sharing 30 songs?
But for copyright-reform advocates, a lawsuit filed against Mr. Tenenbaum by the music industry has provided an instrument to sound alarms about a broader issue: how fear of enormous damages can chill innovation that involves even a minimal risk of copyright liability.
Those advocates, represented by lawyers from the law schools of Stanford University and the University of California at Berkeley, are now pushing the court to set a legal precedent in the Tenenbaum case that they hope would help universities, artists, and others whose experiments may stretch the boundaries of copyright law.
Their campaign came under the spotlight on Monday as a federal appeals court in Boston took up the Tenenbaum case, making it the first such legal fight to reach the federal appellate level. The immediate dispute involved the penalty that U.S. District Court Judge Nancy Gertner had imposed on Mr. Tenenbaum last year. A jury had originally awarded the music companies $675,000 in damages after Mr. Tenenbaum was found guilty of violating copyright law, but Judge Gertner had cut that down to $67,500, arguing that the original fine was “unprecedented and oppressive” and violated the Fifth Amendment’s due-process clause. All parties appealed her decision.
The Berkeley and Stanford lawyers support the judge’s move—but not for Mr. Tenenbaum’s sake. Working on behalf of the the Electronic Frontier Foundation, a nonprofit civil-liberties group, they filed a brief urging the U.S. Court of Appeals for the First Circuit to uphold the fairness review that lowered Mr. Tenenbaum’s fine, so others can rely on that framework in future copyright cases. They argue that the judge was correct in her attempt to ensure that the penalty bore a “reasonable relationship to actual harm.”
“Even if you don’t like Joel Tenenbaum, even if you think he’s a jerk and deserves to go down in flames, this constitutional-due-process review is important,” says one of the brief’s authors, Jason M. Schultz of Berkeley’s Samuelson Law, Technology & Public Policy Clinic. “Because when the court rules, it will not only affect Joel Tenenbaum. It sets the law in place for everyone else who ever gets sued for copyright infringement.”
The record companies argue that the jury’s award was an appropriate response to Mr. Tenenbaum’s flagrant disregard for the law and that it should be reinstated. “The Copyright Act’s damages provisions make crystal clear that willful infringement is subject to greater damages,” their lawyers write in court papers, “and Tenenbaum’s conduct was willful in the extreme.”
But the Electronic Frontier Foundation’s brief describes a range of examples in which fear of unpredictable and potentially large damages has hampered “reasonable and prudent experimentation with copyrighted material, especially in the digital environment.” For instance, the brief points to the Scripps Institution of Oceanography Archives at the University of California at San Diego. Scripps houses a collection of more than 100,000 photographs, many of them donations from people who took part in oceanographic voyages, but it displays only 4,000 of those images online because many of the photos lack official copyright documentation, the brief says.
As others use his case to press their own agendas, Mr. Tenenbaum is mostly focusing his attention elsewhere. On the phone with a reporter, he sounds slightly wary. He’s in wait-and-see mode with the case right now. Asked how long the wait might be, he quips, “You know, before hell freezes over.”
Meanwhile, he’s plugging away at a Ph.D. in physics. His research, among other things, involves modeling financial data. His own finances are not much to model. Mr. Tenenbaum gets by on a “meager grad-student stipend,” he says. The Recording Industry Association of America has not tried to collect any money yet, he says. His next move depends on the size of the final verdict.
“If it’s as many digits as it was before, or as many digits as it is now, I will likely be filing for bankruptcy,” he says.
And file sharing? Does he still do it?
“I do not.”