Tenenbaum and Nesson (JoelFightsBack.com)

In a decision sparse in terms of legal precedence, Joel Tenenbaum, the Boston University student involved in a civil suit with the Recording Industry Association of America, again finds himself staring down the barrel of a six figure judgment. This comes on the heels of a decision by a Federal Appeals Court to reverse former District Court Judge Nancy Gertner’s ruling that Tenebaum’s fine be reduced from $675,000 to $67,500.

Now he owes $675,000 again.

Gertner felt that the jury’s initial ruling was excessive, and therefore a violation of due process. While the appeals court did not directly address the constitutional issues raised by Gertner, they took issue with her “disregard for procedure” in reducing the fine levied against Tenebaum. The appeals court cited that Gertner, in lieu of an arbitrary reduction, should have proposed a figure that the Record Companies could settle on or choose to decline; the latter resulting in a second trial.

The constitutional gray area brought into the spotlight by Gertner’s decision seems to form the foundation of the argument launched by Charles Nesson, a Harvard Law Professor, and his team of law students aiding him Tenebaum’s defense. Nesson and his team seem intent on promoting the idea of the Copyright Statute being vulnerable in its application upon individual file sharers who have no intent to profit from their infringement, a point brought up by Tenebaum in his own defense.

Jason Harrow, one of the students aiding Nesson, stood before the First Circuit Court of Appeals and argued that so few cases of this nature had been filed because “no one thought the statute would apply to consumers like this.” The Judge quickly dismissed this notion by stating that “the literal language of the statute does not include an exception for consumers.” She also pointed out that Congress could have easily written in this exemption had it been their intent for the statute to be interpreted thus. However, Harrow still argued that the statute should be fairly interpreted in order to suppress any constitutional red flags, and that Congress did not necessarily intend for the copyright laws to be enacted in a way that gave leeway to such “absurd results.”

The actual body of the Copyright Law of the United States reads that, “In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” As a result, Tenebaum, who is considered a willful violator responsible for 30 separate infringements, faced a maximum settlement of $4.5 million.

Tenebaum is grateful that the judgment did not reach this multi-million dollar ceiling, saying “That to me sends a message of ‘we considered your side with some legitimacy’”. However, he has also noted that even the significantly smaller figure set by Nancy Gertner, and recently overturned by the appeals court, will result in his filing for bankruptcy.

This is the first case of its kind to reach the Federal Appeals Court, although a similar case involving Minnesota mother, Jammie Thomas-Rasset, is also destined to appear before a Federal Court after three years of circulation in the legal system.

Nine years ago today, a federal judge made a decision that changed music — changed the Internet — forever.

For all intents and purposes, Napster died nine years ago today

Judge Marilyn Patel, of U.S. District Court for the Northern District of California, granted an injunction filed by the record industry against Napster, forcing it to cease all operations.

That was the death of Napster, though two days later an appeals court granted the peer-to-peer file sharing service a stay of execution, which ended on February 12, 2001, when the U.S. Court of Appeals for the Ninth Circuit announced a decision in A&M Records v. Napster, which upheld the RIAA’s injunction saying Napster was participating in copyright infringement.

Napster’s legal counsel tried to argue the VCR case, citing the Audio Home Recording Act and throwing out phrasaes like “fair use.”

They failed.

The following article appeared on ReviewCenter.com on July 26, 2000.

Here Today … Gone Tomorrow — Is Napster Really Dead?
By Christina Warren, Review Center Staff

On Wednesday, a Federal Judge sided with the Recording Industry Association (RIAA) of America, and ordered a temporary injunction on the popular music program Napster. Napster allows its users to share music files in the form of MP3s without regard to copyright.

When the program gained astounding popularity, the recording industry and a group of vocal artists took exception and filed suit against the company, alleging that the trade of MP3s violated copyrights held by the artists and their recording companies.

“Napster is enjoined from copying or assisting or contributing to the copy or duplication of all copyrighted songs and musical compositions of which the plaintiffs hold rights,” US District Judge Marilyn Hall Patel ordered at a hearing in San Francisco federal court.

This ruling will no doubt shock the many users of Napster, as well as supporters who did not think the program would be shut down so quickly.

“When the infringing is of such a wholesale magnitude, the plaintiffs are entitled to enforce their copyrights,” Patel said. Patel ordered that the injunction go into effect at 12 a.m. PDT on July 28, 2000. Patel’s ruling in favor of the RIAA strongly suggests that the trial that will take place against Napster at the end of the year will also find in favor of the RIAA.

The creator and CEO of Napster held a live web broadcast at 7 p.m. PDT on Wednesday, addressing the courts ruling and the future of Napster. Essentially, the message was that while they adamantly opposed the ruling by Judge Patel in the hearing, they would comply with the court’s order. What does that mean?

This means that as of midnight on Friday morning, Napster will basically cease to function as we know it.

The question then becomes for Napster’s users, “What next?” Programs like Gnutella sprouted up as soon as the RIAA filed suit against Napster in December. These programs are even more dangerous to copyright holders, because they allow not only the transfer of music, but of video and text files as well.

It will be hard for anyone to stop people from sharing files. The MP3 format is hardly new, even if it has been making a lot of news with the advent of Napster and the subsequent trials. MP3 files were around before Napster, and they will continue to exist in the wake of this judgment.

Websites are already in the planning stages of trying to keep Napster alive. www.napigator.com has already started posting un-official Napster servers that can be used with the current Napster clients. This will allow Napster users to continue to use Napster after the Friday injunction, but without logging onto “official” servers. As these services become increasingly popular, it is going to be difficult to shut Napster down completely.

Users will have to await a final ruling when the case against Napster goes to trial this fall. The RIAA represents major acts like Metallica and Dr. Dre and represents companies such as Universal Music, BMG, Sony Music, Warner Music Group and EMI.

When everyone has a public MySpace profile, tweets what they had for lunch, and puts their drunken escapades in a Facebook album, no one really has a whole lot of privacy when it comes to the Internet. Nevertheless, we trust that the sites we use on a daily basis will respect the information we give them, as per their privacy policies. For example, Google scrubs user search data after nine months; Yahoo bests even Google by anonymizing search requests after just ninety days.

However, sometimes this trust isn’t respected. Beyond the typical bank breaches that release our credit card and social security numbers “" which are typically the fault of malicious individuals “" companies sometimes just show a flagrant disregard of their users’ respect. For example, take Last.fm and their parent company CBS.

Users of Last.fm scrobble every song they play, essentially allowing their play counts to be displayed on their site profile, and keeping a complete track history on Last.fm’s servers. The site can then determine which users like which songs together and can provide suggestions. The site also can make widgets that display your recently played and favorite artists and tracks.

While certainly nifty, this puts quite a data set in the hands of Last.fm. While the site promises never to release individual, personally identifiable data, the site does release aggregate information to other parties to determine royalty payments and the like. This much makes sense. In trade for free social recommendations and data tools, the labels know how much airtime their songs are getting and how to compensate the artists fairly.

However, allegations have surfaced that Last.fm released information identifying users listening to a leaked U2 album. Last.fm denied this, stating that “no data had been made available to the [Recording Industry Association of America].” Later, in a blog post, Last.fm founders issued a truly categorical denial of information release in a blog post. While the story was alarming, it mostly died down because the information was gathered from anonymous users.

The fire has picked back up again though in the last week; TechCrunch, who originally broke the first story, received more tips stating that while Last.fm did not release the information to the RIAA, CBS requested it “for internal use,” then turned around and released it to the RIAA without Last.fm’s consent.

As of right now, the only hard evidence of anything actually happening is a redacted email sent to TechCrunch, which, while very likely real, is not nearly as damning as in internal email from Last.fm or CBS would be. Last.fm has denied the issue all along, and CBS finally responsed yesterday. The whole story is just sort of hanging in limbo.

Essentially, the take-away message from this whole ordeal is that you have to be careful what sort of information you put on the Internet. It can be used against you in a court of law. Whether or not Last.fm released the information, it is still easily relatable to your user profile via web access, and depending on how much personal information you share there, possibly relatable back to the physical you. This also raises questions about how much you own your information. Sure you give it to Last.fm to compile and display, but most users would still claim rights over its use “" like by opting not to releaase to the RIAA. The possibilities suggested in this situation show that this might not always be the case.

The war against piracy resurfaced in Puerto Rico with 26 arrests. Investigations led to the indictment and arrest of 26 individuals who allegedly violated Title 17, United States Code, Sections 506(a)(1) & (b); and Title 18, United States Code, Section 2319 (b)(1).

In May, U.S. Immigration and Customs Enforcement (ICE) agents, working with the U.S. Secret Service (USSS), the Puerto Rico Bureau of Special Investigations, and officials of the Motion Picture Association of America (MPAA) and the Recording Industry of America (RIAA), launched “Operation Digital Pirates."

The first phase of the operation served to seize more than 53,0000 counterfeit music CDs and movie DVDs. The product raids took place in flea markets throughout Puerto Rico as an initiative from ICE to identify intellectual property rights (IPR) violators and were followed by the arrests.

According to the indictment, those arrested violated copyright laws by reproducing and distributing CDs and DVDs for the purpose of commercial advantage or private financial gain.

“The U.S. Attorney’s Office in Puerto Rico is committed to the prosecution of individuals who sell counterfeit products. In the end, this underground market is damaging to the artists, the local economy and the consumers,” said Rosa Emilia Rodriguez-Velez, U.S. Attorney for the District of Puerto Rico. “The joint efforts of federal and state law enforcement agencies, in collaboration with music and movie industry groups in Puerto Rico, will have a significant impact on the black market which has proliferated in recent years.”

In 2006 alone, the U.S. Customs and Border Protection (CBP) and ICE declared an 83 percent increase in the number of IPR seizures, including 14,675 seizures of counterfeit goods worth more than $155 million. Furthermore, ICE investigations resulted in 219 arrests, 134 indictments and 170 convictions for intellectual property rights violations.

Copyright infringement is sanctioned with up to five years of imprisonment as a first offense or 10 years if the offense is subsequent, with a fine of $250,000 or more.

“There can be no doubt that the illegal music trade is big business, attracting various types and groups of criminals who increasingly have connections to drugs, guns and in some cases even terrorist activities,” said Brad Buckles, executive vice president for anti-piracy for RIAA. “These are crimes that require close collaboration between law enforcement, government and the intellectual property industries in a way that provides a sustained pressure on those who steal in this manner. The illegal trafficking of counterfeit music and other goods drives local retailers out of business and deprives cities and states of important tax revenue generated from legitimate purchases."

ICE or other agencies did not specify if other “Operation Digital Pirates" were being planned in other parts of the nation. The origins for an idea of such operation or means of funding were neither discussed. What is left to do for distributors of these products is stop business or risk being caught at the wrong pace, in the wrong time.