Appealing music

A three-judge panel of the U.S. Court of Appeals for the First Circuit heard oral argument yesterday in Sony BMG Music Entertainment v. Tenenbaum, the cases brought by the recording industry against Boston University grad student Joel Tenenbaum. Tenebaum is appealing the judgment against him for downloading 30 songs. 


Concluding that the jury's damage award of $675,000 was so "unprecedented and oppressive" that it could not withstand scrutiny under the Due Process Clause of the U. S. Constitution, the trial judge, District Judge Nancy Gertner, had reduced the award to $67,500, an amount she described as still "severe, even harsh."  


On appeal, Tenenbaum argues, among other things, that the award remains unconstitutionally excessive and that the Digital Theft Deterrence Act of 1999, which provided the basis for an increased range of statutory damages for copyright infringement (see 17 U.S.C. Sec. 504(c)), was not intended to apply to individual, non-commercial consumers.


The music companies appeal Judge Gertner's reduction of the award.


You can listen to an audio recording of the oral arguments here.


Tenenbaum is represented by a team of lawyers and law students led by Harvard Law School professor Charles Nesson, and on Monday HLS 3L Jason Harrow argued on behalf of Tenenbaum. A Web site, Joel Fights Back, is dedicated to the cause. 


This is only the second case to go to trial against an individual accused of unlawful music dowloading/sharing.  


In 2008 the music industry decided to no longer pursue individuals for allegedly unlawful music downloading or sharing (as reported in this Wall Street Journal article), but that it would continue with suits already in progress.

First Circuit pulls the plug on courtroom Webcast

In what may be a technically correct, but philosophically disappointing, decision, the First Circuit has prohibited enforcement of an order by U. S. District Judge Nancy Gertner, which would have allowed a "gavel-to-gavel" Web cast of a hearing in a case against college students for alleged illegal downloading of music.

In In re: Sony BMG Music Entertainment et al. the court concluded that Judge Gertner's order--based on a request by one of the defendants, grad student Joel Tennenbaum, represented by Harvard Law School Professor Charles Nesson, was based on a "palpably incorrect" interpretation of a local court rule.

Nesson is a founder of Harvard's Berkman Center for Internet and Society.

In a concurring opinion, Judge Kermit Lipez stated that "there are no sound
policy reasons to prohibit the webcasting authorized by the district court," and that the issue "calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome." He went on to note the irony that an audio recording of the oral argument in the hearing before the First Circuit was available on the court's Web site immediately after the argument.

To hear a recording of the hearing and view background material, go to The Recording Industry vs. The People blog.

Another site that contains a link to an audio recording of the hearing, and other information about the case, is Joelfightsback.com, a site apparently run by a group of students--under the guidance of Professor Nesson--assisting in Tennenbaum's defense.