Judge backs student in file-sharing case
Says promotion of activity is free speech
JOEL TENENBAUM Judge Gertner 'categorically confirmed my First Amendment
rights, and I'm thrilled about that.' *JOEL TENENBAUM*
Judge Gertner "categorically confirmed my First Amendment rights, and
I'm thrilled about that."
By Jonathan Saltzman
<http://search.boston.com/local/Search.do?s.sm.query=Jonathan+Saltzman&camp=localsearch:on:byline:art>
Globe Staff / December 8, 2009
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Four record companies 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.
<http://www.boston.com/news/local/massachusetts/articles/2009/12/08/judge_refuses_to_bar_student_from_promoting_illegal_music_downloading/?comments=all>
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<http://www.boston.com/news/local/massachusetts/articles/2009/12/08/judge_refuses_to_bar_student_from_promoting_illegal_music_downloading/?comments=all>
US District Court Judge Nancy Gertner granted yesterday a request by the
companies 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 site. But the record companies accused him of defiantly
promoting further illegal downloading by linking to the service directly
from a website created for his defense. The companies asked Gertner to
order him to stop promoting illegal activity, which she rejected.
"She categorically confirmed my First Amendment rights, and I'm thrilled
about that,'' said Tenenbaum, 25, a 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 yesterday, Gertner formally entered the judgment against Tenenbaum
for the copyright infringements. Tenenbaum has until Jan. 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 companies have brought.
In one of her written rulings yesterday, 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 [email protected]
<mailto:[email protected]>. /
© Copyright 2009 Globe Newspaper Company.
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