The CopyKat - Tenenbaum, Teutonic Trolls and Tipis top our treats

The First Circuit Court Of Appeals has rejected the appeal by file sharer Joel Tenenbaum and has upheld the original damages awarded to the Recording Industry Association of America (RIAA) against the post graduate student of $675,000, rejecting the argument that being ordered to pay $22,500 in damages for each of the 31 songs that were illegally uploaded was excessive. The US Supreme Court had refused to consider the case. The court said: "Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behaviour was exactly what Congress was trying to deter when it amended the Copyright Act".

Germany has introduced new legislation that limits damages that copyright holders  can receive from individuals using illegal file-sharing sites to download music, films or TV series. The legislation limits individual claims to €1,000 ($1,300), meaning the warning fine for a first-time offender, to cover legal expenses, would be capped at around  €155 ($200). A poll by the Federation of German Consumer Organizations estimated that some 4.3 million Germans had  received warnings for infringement, some  demanding an average of $1,000 (€800) per offence: Germany’s Justice Minister  Sabine Leutheusser-Schnarrenberger said the move would stop company’s building ’business  models’ out of warnings.

And more from Germany and In what appears to be a trolling case, a German court has rejected a US film company's request to provide details of alleged illegal downloaders after deciding that there was no copyright in two pornographic films. The Munich regional court decided  that the "primitive" depiction of sex meant that Flexible Beauty” and “Young Passion” could not be protected by Intellectual property laws in Germany saying that the “primitive depiction of sexual processes” mean Malibu Media's films are classified as “pure pornography” and not a copyrighted work. But what about performers rights anyone?

The UK's Intellectual Property Office has announced  that it will provide £2.5 million to the City Of London Police to fund a specific policing unit focused on intellectual property crime, including online piracy. Announcing the new IP crime unit, which is expected to be up and running by September, IP Minister James Younger said "Intellectual property crime has long been a problem in the world of physical goods, but with the growing use of the internet, online intellectual property crime is now an increasing threat to our creative industries. These industries are worth more than £36 billion a year and employ more than 1.5 million people".  The City of London Police have worked with the international recorded music trade body the IFPI to persuade credit card companies and other online payment processors not to accept monies for websites involved in providing access to pirated goods.

Universal Music Publishing has mandated the Australasian Performing Right Association (APRA) and its mechanical rights sister body AMCOS to licence its songs catalogue to digital services throughout almost all of the Asia Pacific region, excluding Japan. The landmark arrangement means APRA/AMCOS will be the first collecting society to represent a major  publisher's catalogue in multiple territories in the Asia Pacific market.

Keef Rocks Glastonbury

Five songs into the Rolling Stone's Glastonbury set, and Mick Jagger introduced a "new" song, written for a girl "in cut-off jeans" he claimed to have met at the Festival on Friday night. It was, according to the BBC, a swampy country-rock number called Glastonbury Girl, and featured the refrain "Waiting for my Glastonbury Girl". In was in fact a re-working of Factory Girl which appears on their 1968 album Beggars Banquet and is it seems published by ABKCO Music Inc (originally Mirage Music) and administered by Alfred Music Inc. But with Sir Mick and Keith Richards having recently re-signed their music publishing rights to BMG, its interesting to see who will be collecting royalties for the lyrics of this "new" song which features references to  wet wipes, inhaling nitrous oxide, camping and ecstasy:  Original lyrics which said a young Mick was "Waiting for a girl who's got curlers in her hair; Waiting for a girl, she has no money anywhere; We get buses everywhere; Waiting for a factory girl" were replaced with a 69 year old Mick who was "Waiting for a girl, helped put up her tipi, waiting for a girl she took all my ecstasy, now she's off with Primal Scream, waiting for a Glastonbury girl". The Rolling Stones official website has the lyrics set out in full, but gives no clues as to who owns what either.

Image: Nick Cordes 2013

Tenenbaum damages upheld

The latest stage in the Joel Tenenbaum saga has resulted in another court loss for the self confessed file sharer after a federal appeals court upheld the award of damages of $675,000 previously made by a jury. 

Tenenbaum was accused of illegally downloading 31 songs from a file-sharing Web site and distributing them, and was sued by the Recording Industry Association of america (RIAA) on behalf of the major record labels in the USA. US District Court Judge Rya W. Zobel rejected Tenenbaum's request for a new jury trial, saying jurors had appropriately considered the evidence of Tenenbaum's actions -- downloading and distributing files for two years despite warnings -- and the harm to the plaintiffs and noted that the penalty is at the low end of the range for wilful infringement and below the limit for even non wilful infringement, and thus was not excessive. Although having been previously refused a Supreme Court hearing, Tenenbaum's attorney Charles Nesson said that he plans a further appeal. 

More at CNet and E-Commerce and background on the 1709 here and here 

Image: freefoto.com (Ian Britton)

Supreme Court refuses Tenenbaum appeal

The US Supreme Court has refused to hear the Joel Tenenbaum case in a case brought by the Recording Industry Association Of America's which resulted in a win for the RIAA and damages of $675,000 awarded by the jury for illegally sharing 30 songs online. The damages were then reduced 90% by the trial judge Nancy Gertner on constitutional grounds but the appeals court subsequently criticised the judge's process, and reinstated the $675,000 damages sum. Tenenbaum's legal advisor Charles Nesson (pictured) hoped to persuade the Supreme Court that his client's damages were indeed unconstitutionally high and that Judge Gertner was correct when reducing the award. But the Supreme Court declined to hear Nesson's arguments yesterday, meaning Team Tenenbaum will have to continue to fight the damages sum in the lower courts, which could involve several more hearings and appeals yet.

Tenenbaum has said publicly that he (unsurprisingly) doesn't have $675,000, and has previously suggested he'd have to bankrupt himself if that figure stood.

From www.thecmuwebsite.com and see  http://articles.boston.com/2012-05-22/metro/31802695_1_copyright-joel-tenenbaum-downloading-music  and  http://www.digitaljournal.com/article/325282 

Tenebaum damages back to starting point

In the see-saw world of US copyright damages for illegal downloading and file-sharing, a federal appeals court has reinstated a 'hefty' $675,000 judgment against Boston University post graduate student Joel Tenenbaum, who admitted to downloading music on Internet file-sharing sites after a judge had reduced the previous jury award at the same level by 90%. The US Circuit Court of Appeals for the First Circuit rejected Tenenbaum’s assertions that he did not violate copyright protection laws because he was a consumer, not someone looking to make a profit from downloading. The court also vacated the US District Court’s decision to reduce the total charges to $67,500, because Judge Nancy Gertner found the original figure was unconstitutionally excessive. The court instead reinstated the jury’s figure of $675,000 criticising Judge Gertner for disregarding procedure in reducing the award. The case involves 30 infringements of copyright law which attracts maximum statutory damages of $150,000 per violation, or a potential maximum in this case of $4.5 million.

In the other leading case involving single mum Jammie Rasset Thomas (Capitol Records v. Thomas-Rasset) Judge Michael Davis rejected a jury's damages award of $1.9 million through both remittitur and on constitutional grounds, and reduced the award to $54,000. The record labels offered defendant Rasset Thomas a settlement at $25,000but she rejected this, and then the labels appealed the judge determined award and a new trial was convened solely to determine damages. Here the jury awarded $1.5 million. This was again reduced by the judge to $54,000. The RIAA is currently appealing the most recent lower damages figure set by a court in the Eighth Circuit.

Both defendants have said they do not have the means to pay the damages awarded.


http://articles.boston.com/2011-09-20/news/30180976_1_appeals-court-joel-tenenbaum-district-court

http://www.courthousenews.com/2011/09/20/39931.htm

Photo: Tenenbaum's lawyer, Harvard law professor Charles Nesson in a fetching turtle-neck sweater.

Copygrounds gets Tenenbaum

A new copyright web forum called Copygrounds has been launched by staff and students at the Department of Radio-Television-Film at the University of Texas. The first blog is a fascinating interview with Joel Tenenbaum, who became the poster boy for illegal filesharers around the world after being sued by the Recording Industry Association of America (see previous blogs here!).

Copygrounds describes itself as “an academic discussion forum and digital media platform which focuses on the technological changes now taking place within contemporary media systems. The dynamics of technological development have been accompanied by numerous antagonisms and outright conflicts between parties with conflicting interests. These antagonisms and conflicts are the particular target of our analysis.”

The Tenenbaum interview is posted by Debbie Rosenbaum. Debbie is currently completing a dual law and business degree at Harvard Law School and Harvard Business School and is a member of the team of Harvard Law School students who, under the guidance of Professor Charles Nesson, mounted Tenenbaum’s defence. There is quite a large blogging team with some pretty impressive CVs, so a site well worth watching.

The site is open and welcomes public commentary – but also says “as this is primarily a student project, commentary which is not suitable for a classroom setting will be removed.”

http://copygrounds.com/

For more comment see http://torrentfreak.com/confessions-of-a-convicted-riaa-victim-100916/

Smoking pipes and other copyright tales

To the USA first, where the Recording Industry Association of America (RIAA) have announced that they will appeal a federal judge's reduction of a file-sharing copyright damages award from $675,000 to $67,500 in the Joel Tenenbaum case. The original award ordered the Boston University student to pay $675,000 in copyright infringement damages for sharing 30 songs online. Earlier this month, U.S. District Judge Nancy Gertner ruled that amount unconstitutionally excessive, and reduced it by 90%. Similarly the copyright infringement damages award of $1.92 million that a jury ordered defendant Jammie Thomas-Rassett to pay has been reduced $54,000, although that case appears headed for a new trial on the issue of damages.

An to Germany for another turnaround: In Dusseldorf the appellate court has overturned a lower court's order that free file-hosting service Rapidshare must install a keyword filter to block the sharing of copyrighted media. The lower court issued a preliminary injunction against Rapidshare last year, after film distributor Capelight Pictures sued the site when copies of its "Insomnia" and "Inside a Skinhead" movies were made available for download from the service. The lower court ordered Rapidshare to filter words such as "insomnia" and "skinhead". The Higher Regional Court of Dusseldorf has now ruled that more advanced filter that used full film titles cannot be used - noting that the words could wrongfully remove users' private copies of the films, which are permitted under German law. The court also said Rapidshare is not obligated to pursue those who distribute links to unauthorized files hosted on it service.

Finally to Eire where Irish ISP UPC has said that it will continue to “vigorously” defend itself against liability proceedings taken against it in the Eire's courts by content owners. The company is the latest in a series of ISPs to take issue with copyright holders' insistence that they police customers' Internet traffic. Ireland's biggest ISP, Eircom, was successfully taken to court by the IRMA (Irish Recorded Music Association) and is currently sending warning letters to customers who have allegedly infringed copyright through illegal downloading using the IP addresses of alleged infringing customers which are supplied by IRMA. UPC said that it does not condone piracy, but considers that "there is no basis under Irish or European law requiring an ISP to monitor or block subscriber traffic on its network" – although in France and the United Kingdom there are the new, and much criticised, "three strikes" laws – the French HADOPI law and the Digital Economy Act in the UK – the French law has already faced legal challenge and as previouslt reported, the UK law is about to face a judicial review.

http://www.zeropaid.com/news/90025/riaa-appeals-reduction-of-tenenbaum-p2p-judgment/
http://arstechnica.com/tech-policy/news/2010/07/german-court-overturns-injunction-against-rapidshare.ars
http://www.pcworld.com/businesscenter/article/201767/isps_battle_against_threestrikes_rule_throughout_eu.html

A kind of magic? Tenenbaum damages shrunk by 90%

US District Judge Nancy Gertner has slashed the federal jury award made against convicted file sharer Joel Tenenbaum by 90 percent, ruling that the award of $22,250 per infringed work could not withstand scrutiny under the Due Process Clause and was “unconstitutionally excessive’’ in light of what she described as the modest harm caused to the record labels whose works were infringed. She cut the award to from $675,000 to $67,500, one-tenth of the original sum. Judge Gertner said

“There is no question that this reduced award is still severe, even harsh .... It not only adequately compensates the plaintiffs for the relatively minor harm that 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.’’

Judge Gertner’s maths to get to a figure of $22,250 damages for each act of infringement went like this

- statutory damages must bear a reasonable relationship to the actual damages
- the actual damage sustained by plaintiffs was no more than $30
- the benefit to the defendant was in the neighborhood of $1500
- it was permissible to treble the minimum statutory damages due to defendant's wilfulness

However the Boston Globe reports that the Judge Gertner believes that reduction also sends an equally important message that the constitutional protection against grossly excessive punitive awards in civil suits protects not only big corporations but “ordinary people like Joel Tenenbaum’’. Congress, she said, never envisioned that the Digital Theft Deterrence Act of 1999 would expose people like Tenenbaum to huge statutory damages for violating copyright law through illegal file sharing.

The major label’s trade body, Recording Industry Association of America (RIAA) issued a statement saying, “With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress’’ saying that it would “contest this ruling’’.

Judge Gertner’s decision to reduce jury damages mirrors that in the case against Minnesota single mum, Jammie Thomas-Rasset who faced a jury award of $1.9 million. Earlier this year, the judge in that case reduced a jury award of $1.9 million in favour of the recorded music industry to $54,000 in her second trial, and the industry offered to settle the case with her for $25,000. However, Thomas-Rasset rejected the settlement, and the case is now poised to go to trial for a third time. Whether Tenenbaum decides to appeal is open – his lawyer, Havard law professor Charles Nesson said he is inclined to appeal the $67,500 award as still unconstitutionally excessive to the First Circuit Court of Appeals but must speak first with his client. Tenenbaum to reporters he had not read the decision and whilst he welcomed any reduction but he could not afford $67,500 either.

http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_100709Decision.pdf
http://www.boston.com/news/local/massachusetts/articles/2010/07/10/file_sharing_damages_reduced_tenfold/
and lots of interesting comments here in the blogsphere http://recordingindustryvspeople.blogspot.com/2010/07/675000-verdict-reduced-to-67500-in-sony.html

And see 'A copyright ruling no one can like' at http://news.cnet.com/8301-31001_3-20010428-261.html

Tenenbaum guilty and faces $675,000 damages, appeal and bankrupcy

A federal jury in Boston yesterday ordered Joel Tenenbaum, the Boston University postgraduate student who admitted illegally downloading and sharing music online, to pay $675,000 in damages to four record labels. The sum represents US $22,500 per track. Tenenbaum admitted in court that he had downloaded and distributed 30 songs and the only issue for the jury to decide was the quantum of damages to award the record labels. Under US federal law the recording companies were entitled to anything between $750 to $30,000 for each infringement and the law allows as much as $150,000 per track if the jury finds the infringements were wilful. On the witness stand Tenenbaum admitted downloading more than 800 songs from 1999 to 2007 on his home computer and his mother (a lawyer specialising in family law) made it clear in her evidence that she had warned him about his downloading. The Jury took just three hours to find Tenenbaum guilty of wilful infringement.

Tenenbaum seemed to take some comfort in the fact that the maximum jurors could have awarded in this case was $4.5 million saying “I'm disappointed, but I'm thankful it wasn't millions” adding "to me it sends a message of 'We considered your side with some legitimacy". The postgraduate physics student now says he will appeal and dependent on that appeal probably apply for bankruptcy. Tenenbaum was originally offered a settlement at approximately US $3,000 by the Recording Industry Association of America - which he countered by offering $500 saying he couldn’t afford to pay more - and then after some further negotiations Tenenbaum says he refused a settlement at $10,500 which he says was demanded by the RIAA - in hindsight a substantially cheaper option. But then hindsight is marvellous thing ...

Read more: http://www.nydailynews.com/money/2009/07/31/2009-07-31_court_orders_boston_university_student_joel_tenenbaum_to_pay_675g_for_illegally_.html#ixzz0MvZdgiKq and many thanks to my good friend Arthur Heard who spotted this (pre verdict) blog by young Joel at http://www.guardian.co.uk/music/musicblog/2009/jul/27/filesharing-music-industry