Joel Tenenbaum joins the I-Owe-the-RIAA-My-Firstborn club

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My vacation ended last week as a federal jury was ordering a Boston University grad-school student to pay the major record labels $675,000 for illegally downloading and sharing 30 songs that he could have purchased for less than the price of a textbook. (OK, OK, less than half the price of a textbook.) Ars Technica offered a good post last week on the judge’s decision to bar the student, Joel Tenenbaum, from raising a fair-use defense. Given Tenenbaum’s admission on the stand that he had, in fact, downloaded and shared the songs at issue (because ‘art is meant to be shared,’ he says on his blog), his attorney was left imploring the jury to ‘send a message’ to the copyright holders by awarding them 99 cents per song -- less than the statutory minimum of $750 per infringement.

Unfortunately for Tenenbaum, the messages appears to be the same one sent by jurors in the two trials of Jammie Thomas-Rasset. By tuning Tenenbaum up for $22,500 per song -- not the $150,000 maximum by any stretch, but still a sizable figure -- they expressed their sharp disapproval of people who willfully break the law. Illegal downloading is a petty crime, and the major record companies are highly unsympathetic victims. Yet jurors in all three cases not only refused to nullify the law, they chose to apply bankrupting penalties.

Tenenbaum and his defense team from Harvard Law School are expected to appeal, challenging both the fair-use ruling (which was right in line with several other courts’ holdings, starting with the 9th Circuit’s first Napster decision) and the statutory penalties. The jurors’ actions may not sway the higher courts, but they suggest that cases like Tenenbaum’s and Thomas-Rasset’s aren’t the best vehicles for challenging copyright law. I think the statutory penalties are far too high, too, but the most compelling bits of evidence on that point are the anecdotes about defendants who paid several thousand dollars to settle dubious claims by the RIAA (e.g., a lawsuit against a parent of a middle-school student who used Kazaa without the parent’s knowledge) because it would be costlier to fight the labels in court. Congress, not the courts, is the right place to rectify this imbalance, and its track record suggests that Mickey Mouse will enter the public domain before lawmakers reduce the statutory penalties for infringement.

-- Jon Healey

Healey writes editorials for The Times’ Opinion Manufacturing Division.