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Globe Editorial

Awkward download laws make music-sharing case a travesty

December 14, 2009

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IF THE LAWS about music file-sharing bore any relationship to common sense, Boston University graduate student Joel Tenenbaum’s civil trial might not have turned into a circus. But the inadequacies of the law brought out the worst both in Tenenbaum and in the record companies that sued him.

The exceedingly widespread act of sharing electronic files of copyrighted songs is, under multiple court precedents, a form of copyright infringement. Yet the penalties are draconian - up to $150,000 for what amounts to the theft of songs that are sold online for about $1 each. Under existing laws, the record industry began filing lawsuits demanding money from a tiny fraction of people caught sharing files. The suits haven’t stemmed illegal downloads, and the strategy is arbitrary - the rough equivalent of a traffic cop who ignores 9,999 speeders before demanding massive fines from the 10,000th.

Even so, the recording industry secured a $675,000 jury verdict against Tenenbaum, who had shared 30 songs over the Internet. The record companies went so far as to ask federal district Judge Nancy Gertner to enjoin Tenenbaum from using his notoriety to promote music piracy. That would have violated Tenenbaum’s free-speech right to urge disobedience with the law, and this week Gertner wisely declined to issue such an order.

But Tenenbaum and his counsel, Harvard Law School professor Charles Nesson, didn’t help themselves with a theatrical and generally inexplicable defense. Nesson’s bizarre decision to defy court rules by posting digital recordings of certain proceedings onto the Web was more likely to alienate than to win support for the BU student’s cause. They more or less admitted the basic facts of the case and insisted that distributing songs against the wishes of the copyright owner was a form of fair use - for which they offered a definition broad enough to guarantee that recording artists would never be paid for their work.

Maybe Tenenbaum simply hoped that a jury would find the penalties for sharing 30 songs to be disproportionate to the offense. Indeed, a $675,000 penalty seems appropriate for gross misdeeds, rather than for an act that requires just a few keystrokes and mouse clicks, but the award falls well within guidelines of the relevant laws.

Gertner plainly sees the absurdity. In her opinion, the judge says she “urges - no implores - Congress to amend the statute to reflect the realities of file sharing.’’ It would be nice if file-sharers such as Tenenbaum acknowledged that illegal downloading makes it harder for musicians to earn a living, but in any case the solution to the problem is more likely to emerge from technological change than from legal action. In the meantime, though, the law should reflect the difference between large-scale counterfeiters who profit off of copyright infringement and the student who casually shares files.

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