P2P Copyright Infringement Trial Going Downhill for Downloader

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The second music downloading lawsuit to go to trial among the 18,000 such claims brought by the recording industry against end-users began inauspiciously for the 25-year-old Boston University grad student defendant who has not denied downloading 30 copyrighted tunes from the KaZaA peer-to-peer network in 2004.

In an unusual Email Order to the parties at 1:37 a.m., U.S. District Court Judge for the District of Massachusetts Nancy Gertner rejected the key "fair use" argument advanced by Joel Tenenbaum's lead counsel, Harvard Law Prof. Charles Nesson, which may prove a death blow to the defense in the case (Capitol Records, Inc. v. Noor Alaujan, Case No. 03-cv-11661; Sony BMG Music Entertainment et al. v. Joel Tenenbaum, Case No. 07-cv-114446).

As a prelude to her full opinion to come, Judge Gertner wrote: "Tenenbaum proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment."

The Recording Industry Association of America (RIAA) has recently shifted its emphasis from suing end-users, often college students of limited means, to trying to deter Internet Service Providers who offer the connections of KaZaA-type services to the end users. Nevertheless, the RIAA prevailed in the first trial of a P2P infringement case against a Minnesota woman in June who was ordered to pay $1.92 million to the Vivendi-owned Universal Music Group for illegally downloading 24 songs. Many of the 18,000 claims have been resolved by the defendants settling with the music companies by forking over damages in the range of $2,000 or $3,000.

If the five men and five women who make up the jury in the Tenenbaum case should find against him and award statutory damages, Judge Gertner has indicated that she may hold a post-trial hearing to ensure that the award is not excessive. Each of the 30 allegedly illegally downloaded songs could result in damages ranging from $750 to $150,000 (for "willful infringement"), so that in a worst-case scenario, were Tenenbaum to lose, he could face a $4.5 million judgment.