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Judge slashes file-sharing fine to $67,500

But says it is still 'excessive'

Even after cutting a damages award in a file-sharing case to one-tenth the original sum, a judge said Friday the new fine was still excessive.

The Massachusetts judge on Friday reduced to $67,500 an original $675,000 award that a jury had ordered a Boston Ph.D student to pay for illegally sharing music files.

"There is no question that this reduced award is still severe, even harsh," Judge Nancy Gertner of the US District Court for the District of Massachusetts wrote in her opinion on Friday. "It not only adequately compensates the plaintiffs for the relatively minor harm that [Joel] Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards."

A group of record companies sued Tenenbaum, a Ph.D student at Boston University, last August for illegally downloading and sharing 30 songs online. Last year, a jury decided he should pay $22,500 per song for copyright infringement. Tenenbaum subsequently asked for a reduced sentence and a new trial.

In addition to reducing the jury award, the judge granted Tenenbaum's motion for a retrial to reduce the award. She rejected other arguments that his legal team presented in asking for a new trial.

It sounds likely that his lawyers will attempt to reduce the award even further. In a blog post, Tenenbaum's legal team said it felt vindicated. "But it is only a step along the way toward recognizing the abusiveness of the [Recording Industry Association of America's] litigation campaign. The next step is to demonstrate that Joel was denied a fair jury trial when Judge Gertner told the jury in her instructions that it could award an unconstitutionally excessive amount," wrote Debbie Rosenbaum, a Harvard law student working on the case.

"A $67,500 pricetag for 30 songs is still a bill Joel cannot afford," the lawyers added.

The RIAA clearly disagrees with the judge's opinion and also appears poised for further battle. "With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."    

Judge Gertner had hinted in an earlier opinion that she might consider file sharing before a certain date to be fair use. Gertner had said people who used file-sharing networks before digital music could be legally purchased but who later began paying for such music might be in the clear. She set the introduction of the iTunes music store in 2003 as the end of a potential fair-use period.

In his request for a retrial, Tenenbaum, whose file sharing occurred in 2004, had tried to stretch that date. He attempted to argue that file sharing prior to 2007 should be considered fair use because before then digital music was rarely available without the encumbrance of Digital Rights Management technology. But the judge declined to change her opinion on the matter.

"Tenenbaum effectively blames the plaintiffs for his conduct because they did not make their copyrighted works available in the format he preferred. Even if a copyrighted work's commercial availability factors into the fair-use analysis, a consumer does not have a right to demand that a copyright owner make his work available in the exact format that the consumer desires," the judge wrote.

She also said there's no evidence that Tenenbaum used file-sharing networks because he wanted DRM-free music. "And as I have previously ruled, his efforts to thwart the plaintiffs' right to charge for the enjoyment of their copyrighted works did not constitute fair use," she wrote.


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