Judge won't stop student from promoting illegal downloading

By Jonathan Saltzman, Globe Staff

Four record labels that were awarded a total of $675,000 in damages after a Boston University graduate student illegally downloaded and shared music online have lost their bid to get a federal judge to order the student to stop promoting such activity.

US District Court Judge Nancy Gertner today granted the labels' request that she order Joel Tenenbaum to destroy the 30 songs that a federal jury found he downloaded and to not commit further copyright infringement. But she rebuffed their request to bar him from encouraging others to break the law.

``The word 'promote' is far too vague to withstand scrutiny under the First Amendment,'' Gertner wrote. ``Although plaintiffs are entitled to statutory damages, they have no right to silence defendant's criticism of the statutory regime under which he is obligated to pay those damages.''

On July 31, a federal jury in Boston found that Tenenbaum had infringed on the copyrights of songs such as Nirvana's "Come As You Are'' and Green Day's "Nice Guys Finish Last'' and awarded damages. A few weeks later, the playlist of the songs he was sued over ended up on The Pirate Bay, a Swedish file-sharing service, as ``The $675,000 Mixtape'' next to an image of Tenenbaum as "DJ Joel'' and the phrase ``Approved by the RIAA.'' That was a reference to the Recording Industry Association of America.

There was no evidence that Tenenbaum was responsible for putting the playlist on The Pirate Bay. But the labels accused him of defiantly promoting further illegal downloading by linking to the service directly from a website created for his defense. The labels asked Gertner to order him to stop promoting illegally activity, which she rejected.

"She categorically confirmed my First Amendment rights, and I'm thrilled about that,'' said Tenenbaum, a 25-year-old doctoral student in physics, who acknowledged criticizing the RIAA in interviews with news outlets and online. "I'm just very pleased I can speak freely without the court having to come down on me for it.''

Also today, Gertner formally entered the judgment against Tenenbaum for the copyright infringements. Tenenbaum has until January 4 to file a motion for a new trial or to ask Gertner to slash the award, both of which Tenenbaum said is likely.

Gertner has made no secret of her sympathy toward high school and college students who view file-sharing as a fact of life on the Internet and her distaste for the lawsuits that record labels have brought.

In one of her written rulings today, she wrote that she was "deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet.''

But she said Tenenbaum's lawyer, Harvard law professor Charles Nesson, had mounted a ``truly chaotic defense,'' missing deadlines, ignoring rules, and tape-recording opposing counsel and the judge at pretrial hearings and legal proceedings without permission.

Cara Duckworth, a spokeswoman for the RIAA, said the association was pleased that Gertner had entered the judgment and ordered Tenenbaum to destroy all illegal music files and to "refrain from further theft of our music.''

Saltzman can be reached at jsaltzman@globe.com