Tenenbaum fine: USD675,000

The jury in the Tenenbaum case has decided he must pay $22,500 for each track he used contrary to the terms of the licence, which tots up to a 675,000 dollar bill.

There's to be an appeal - given that the judge passed a summary judgement which stopped any discussion of fair use - but it's still not clear how the jury wound up at this figure in the first place. There's a maximum amount allowed by law - $150,000 per track - and a morally justifiable amount of about 99 cents a track. Where are the jury coming up with their figure from? Is there anything scientific about their deliberations, or is it simply a case of a number which sounds right?

Because it's not clear how an arbitrary fine really helps anyone, is it?

The Tenenbaum trial: People say the funniest things under oath

So, the Tenenbaum trial is now basically about how large the "damages" should be, as Judge Nancy Gertner granted a summary dismissal on the fair use defence. Because, hey, why should we even bother listening to the arguments properly, right?

Now the trial is burrowing into the issue of losses sustained by the music industry, which led to this surprising claim:

Turning to the critical issue of harm, plaintiffs called their expert Stanley Liebowitz, an economics professor at the University of Texas at Dallas, who opined forcefully that file-sharing has harmed the market for recorded music. Liebowitz displayed a graph that showed the revenues from recorded music rising fairly steadily from 1973 until 1999, when they dropped dramatically and continued to fall through 2008, the last year for which he had data.

The cause of the sudden turn for the worse in 1999? Napster, testified Liebowitz. Recorded music revenues dropped from $18.5 billion in 1999 to $8.5 billion in 2008 (both in 2008 dollars). Liebowitz explained how he considered various explanations for the drop in revenue: overall economic conditions, change in prices, and consumer shifts in entertainment purchases away from music to DVDs and videogames. But, he said, the data simply didn’t support any of these explanations, leading him to conclude that the real culprit was consumers’ newfound ability to obtain music on the Internet without paying for it.

Now, I can see that you might be able to construct an argument that unlicenced file-sharing harmed the recorded music industry. But to suggest that there's no data which supports other theories as to cause of the decline is flabbergasting. The shift of CD sales from specialist stores to supermarkets, and the consequent repricing of the highest sellers from luxury purchase to impulse buy can't, in any way, explain the drop in value of music sold? Seriously? The rise of the DVD, combined with the end of a golden age of people repurchasing their vinyl records as CDs - that isn't apparent in the data Liebowitz has seen?

To say nothing of his apparent - fallacious - assumption that the music industry would naturally carry on selling more and more, year on year. Is it not possible the CD and the lure of buying your collection over and over again disguised what would otherwise have been a drop in sales from the start of the 1980s? After all, if you look at sales, Thriller is the one to beat. That came out in 1983, just as CDs were becoming commercially available. Could it be the decline in sales is more because the industry became obsessed with repackaging its old shit instead of focusing on fresh?

Apparently not, according to Liebowitz's testimony. Napster, and Napster alone, broke five multinational companies.

The case continues.

To say nothing of not even consider

RIAA lawsuits 'unconstitutional', says someone who knows what they're talking about

The RIAA's attempts to blackma- sorry, that's such an ugly word, isn't it? Shall we call it encourage? - filesharers to pay huge 'fines' for alleged misuse of copyright material has been called an abuse of law by Harvard law professor Charles Nesson. He reckons that not only is the law unconstitutional - making a crime out a civil wrong - but that the RIAA should be punished for abusing the law:

In essence, Plaintiffs are using the prosecution of Joel Tenenbaum to extort other accused infringers: the accused are told to either pay the settlement, or else be exposed to the protracted litigation and potentially astronomical damages that Joel now faces. See Milford Power Ltd. Partnership by Milford Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass. 1996) (holding that "the essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding"). The intimidation tactics are working: of the 30,000 accusations the RIAA has leveled against individuals, only a single defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a new trial).

The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."

It's almost heartbreaking - the very efficiency with which the RIAA has been dipping into the pocketbooks of Americans being used as evidence of how much it's abusing its power. Almost heartbreaking; but at the same time, kind of funny.

Nesson made his comments in a legal defence filed in support of Joel Tenenbaum who's counterclaiming against the RIAA. If we were music business executives, we'd be very, very nervous about what losing this case would mean for the entertainment industry - given that they've taken money off 30,000 people using these rules and just repaying those people would be costly. If 30,000 sued for damages, it could be wipe-out bad. And given that the RIAA squeezed them, there's no reason to expect they'd feel moral compulsion not to squeeze back, is there?