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Music ‘infringer’ targeted again

Record labels say he steers people to an illegal site

‘I don’t know who got the idea to put it up there,’ Joel Tenenbaum says of a mix of songs he illegally downloaded, now on a Swedish website. ‘I don’t know who got the idea to put it up there,’ Joel Tenenbaum says of a mix of songs he illegally downloaded, now on a Swedish website.
By Jonathan Saltzman
Globe Staff / September 3, 2009

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Barely a month ago, a federal jury ordered Joel Tenenbaum to pay four record labels a total of $675,000 in damages for illegally downloading 30 songs and sharing them online. Jurors sided with the plaintiffs’ lawyer, who described the Boston University graduate student as a “hard-core, habitual, long-term infringer.’’

But in one corner of cyberspace, Tenenbaum is now “DJ Joel,’’ and anyone who shares his love of Nirvana, Green Day, and Eminem - and his antipathy toward the Recording Industry Association of America - can illegally download “The $675,000 Mixtape’’ and get the very songs he was sued for sharing.

Although there is no evidence that Tenenbaum was responsible for putting the playlist on The Pirate Bay, a Swedish file-sharing service, the record companies have accused him of defiantly encouraging further illegal downloading by linking to the service directly, from a website created for his defense.

The labels have asked US District Judge Nancy Gertner to order Tenenbaum to destroy files he illegally downloaded years ago and to stop promoting such activity by others.

“It’s a little like him standing on a street corner and waving everybody over and saying, ‘This guy has a table of illegal CDs and you can pick them up for nothing,’ ’’ Jennifer Pariser, the head of litigation for the Washington-based RIAA, said yesterday.

Tenenbaum said yesterday that he had nothing to do with The Pirate Bay’s Web publication of the song list, the phrase “Approved by the RIAA,’’ and a photograph of him with his arms crossed.

He also said he is not responsible for the JoelFightsBack Twitter site, which called The Pirate Bay posting “interesting’’ and said the songs were being downloaded “widely in protest.’’

The Twitter site is run by Tenenbaum’s legal team, he said, which is headed by Harvard Law professor Charles Nesson and includes several students.

“It’s something that Pirate Bay just did on its own,’’ Tenenbaum said of “The $675,000 Mixtape.’’ “I don’t know who got the idea to put it up there. But we thought it was funny.’’

On July 31, a US District Court jury in Boston concluded 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 the record labels $22,500 for each infringement. It was only the second such lawsuit to go to trial.

The verdict came the day after the 25-year-old doctoral student in physics unapologetically admitted from the witness stand that he had illegally downloaded and shared hundreds of songs from 1999 to at least 2007 through peer-to-peer networks.

As a result of his admission, Gertner, the trial judge, ruled that Tenenbaum had conceded liability and directed the jury to consider only how much he should pay in damages.

The request for an injunction, filed Tuesday by the record labels, also asked Gertner to formally enter the judgment against Tenenbaum. When she does, that will almost certainly not be the end of the case.

Tenenbaum’s lawyer, Nesson, said immediately after the verdict that he plans to appeal, and Tenenbaum said yesterday that the lawyers expect to mount a two-pronged attack.

They plan to challenge Gertner’s ruling that the defense could not argue Tenenbaum had the right to download and share songs under the fair use doctrine of copyright law.

They also plan to challenge the size of the award, saying the statutory damages that Congress permits for each infringement are excessive.

Pariser acknowledged that if Gertner issues an injunction ordering Tenenbaum to destroy his music files and to not encourage people to download the songs from The Pirate Bay, that won’t affect the playlist’s availability on the Swedish website.

But, she said, it will have “erased the guy with the bullhorn’’ pointing to the site.

Jonathan Saltzman can be reached at jsaltzman@globe.com.