WASHINGTON, D.C. - For illegal downloaders who thought the new administration would bring "change" there, too, guess again. The Department of Justice has sided with a Recording Industry Association of America lawsuit, giving the OK to high fines per music track.
In the case against former Boston University graduate student Joel Tenenbaum for illegal peer-to-peer file sharing the RIAA asks for $750 to $150,000 per piece of music on behalf of various record labels. The defendant's attorneys, led by Professor Charles Nesson of Harvard Law School, challenged the validity of the fines and the constitutionality of the federal copyright act.
In a brief issued Sunday to Massachusetts federal judge Nancy Gertner, Department of Justice trial attorney Michelle Bennett wrote, "The statutory damages for copyright infringement has been the cornerstone of our federal copyright law since 1790, and Congress acted reasonably in crafting the current incarnation of the statutory damages provision.
"Congress sought to account for both the difficulty of quantifying damages in the context of copyright infringement and the need to deter millions of users of new technology from infringing copyrighted work in an environment where many violators believe that their activities will go unnoticed."
Bennett's stance jibes with similar opinions from the Bush Administration, Wired reports. In fact, two top DOJ lawyers are former RIAA attorneys: Associate Deputy Attorney General Donald Verrilli Jr. and number-two man in the DOJ, Tom Perrilli, Verrilli's former boss. It was Perrilli who argued in 2002 that Internet service providers should release customer information to the RIAA without a court subpoena.
Despite Tenenbaum's defense team suggesting the requested damages were excessive, the DOJ brief argues to the contrary:
"The harms caused by copyright infringement are not negated merely because an infringer does not seek commercial gain. In the context of online media distribution systems, infringement without commercial gain limits a copyright owner's ability to distribute legal copies of copyrighted works. The public in turn suffers from lost jobs and wages, lost tax revenue and higher prices for honest purchasers of copyrighted works."
One of the groups taking an opposing position is the Free Software Foundation, which filed a court brief of its own that focused on the amount of the statutory damages, rather than the government's assertion that federal copyright legislation allows for claims.
"The RIAA's lost profits in the case of an mp3 file are approximately 35 cents. Statutory damages of $750 to $150,000 are obviously divorced from economic reality, and totally out of proportion to actual damages suffered," the organization said, reports ArsTechnica.
But record labels have said it's not the single legal download cost of a track, but rather the damage caused by the track's free proliferation that follows as it's shared more and more.
ArsTechnica notes the FSF brief was filed by a Massachusetts attorney along with New York lawyer Ray Beckerman, a longtime opponent of the RIIA, via litigation and a dedicated blog.
The RIIA vs. Tenenbaum case has taken odd twists and turns, from the defense's attempt to remove the RIAA's lead counsel, to Nesson apologizing to the judge and the RIAA.
Beckerman believes the entire case is a mess and calls it "bizarre."
In the past five years, the RIAA has filed lawsuits against more than 30,000 users for alleged illegal file sharing. The organization also demands that ISPs slow the connection speeds of violators to hamper downloading and cut off Web access for repeat offenders.