BU Student's Illegal Download Trial Tests Limits Of 'Fair Use'

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Boston University student Joel Tenenbaum, left, is being sued by the recording industry for illegally downloading music. Tenenbaum’s defense attorney, Harvard Law Professor Charles Nesson, right, claims the music isn't covered by the “fair use” exemption under U.S. copyright law. (AP)
Boston University student Joel Tenenbaum, left, is being sued by the recording industry for illegally downloading music. Tenenbaum’s defense attorney, Harvard Law Professor Charles Nesson, right, claims the music isn't covered by the “fair use” exemption under U.S. copyright law. (AP)

For the second time only, a music downloading lawsuit is going to trial. Opening statements are scheduled Tuesday in federal court in Boston in the recording industry's lawsuit against Boston University graduate student Joel Tenenbaum, who is accused of downloading 30 songs without paying.

Tenenbaum's defense attorney, noted Harvard Law Professor Charles Nesson, claims the music is not covered by the "fair use" exemption under U.S. copyright law. But Judge Nancy Gertner ruled Monday that Tenenbaum cannot use "fair use" in this case.

To learn more about the case, we spoke with Nate Anderson, senior editor of the technology news site Ars Technica, who's been covering the case extensively.

Bob Oakes: What's the significance of this case, and what makes it different from the first file-sharing trial, in which a federal jury last month said a Minnesota woman must pay almost $2 million for copyright infringement?

Nate Anderson: Yeah, that case you're referring to was actually the first case out of 18,000 cases brought by the recording industry over the last five years or so that has actually gone to trial.

This Joel Tenenbaum case is the second one and what sets it apart from the first one is the claims that are being made. In the first case, up in Minnesota, the woman claimed that she didn't do it. The jury didn't believe her, she was found guilty — or liable — and was on the hook for $1.92 million.

In this case, Joel Tenenbaum is not trying to claim he didn't do it, he's saying that what he did was a fair use under U.S. copyright law.

You call the defense strategy that Joel Tenenbaum and his attorneys are going to employ "bold" in one of your posts. Explain that.

It's a fairly bold gambit to say that people are allowed to download wholesale copies of music and movies over the Internet, and that activity's actually protected under U.S. copyright law.

That's certainly not a standard argument, it has not really worked in court in the past, but Joel is being defended in this case by Harvard Law's Charles Nesson and, as I say, this is only the second case to go to trial. So it's a really important test of that issue.

Judge Gertner has rejected the fair use claim, is that a fatal blow to Tenenbaum's case? And why do you think she rejected it?

I think it will be a fatal blow, I'm not sure they have much else to rely on. The case is certainly unusual; that order did not come down until 1:30 in the morning on Monday, about eight hours before the trial started.

And I think the judge recognized, if you read her order, that what the claim amounted to was a total evisceration of U.S. copyright law as applied to the digital world, and, you know, in her view that's an argument, I think, best left to Congress and doesn't reflect the laws that currently exist.

Why is the recording industry pursuing this case as vigorously as it appears to be, and what does this mean for other potential cases?

Well, the industry is concerned about precedent here, especially because Joel is pushing so hard that what he did was a fair use. That's an argument that, in the industry's view, could decimate what it does financially. And so they're pushing very hard in these cases to set up precedent.

What's interesting, though, is that they've actually given up this legal campaign already of suing individuals — as I said about 18,000 people over the last five years. And they abandoned that late last year, but they're determined to wrap up cases they had already started, they're not letting people off the hook, they want that precedent set by the courts to make sure that people know this activity is not legal.

So, in no way, shape or form will this lawsuit — no matter how it ends — stop students in dorm rooms across America from sharing music.

Probably not, but the industry has two approaches that it thinks is gonna help. The first is that there are many more new, legal ways to listen to music on the Internet than there were say five years ago when this campaign got started. I mean, iTunes has become a huge service, but there's all sorts of new streaming services where people can listen to millions of songs online, legally, and the record companies are getting paid for it.

The other thing that they're doing is attempting to move away from suing the end users -- the college students in their dorm rooms — and putting pressure on the Internet service providers who offer those connections to people and to colleges. They're asking them to start doing more to police this sort of activity on their networks.

What could Tenenbaum be on the hook for? If Joel Tenenbaum loses this case, what might he have to pay?

He's being sued on 30 songs. Statutory damages are written into the law, and they range from between $750, as a baseline, all the way up to $150,000 per song. That means Joel could be on the hook for $4.5 million in this case.

This program aired on July 28, 2009.

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Bob Oakes Senior Correspondent
Bob Oakes was a senior correspondent in the WBUR newsroom, a role he took on in 2021 after nearly three decades hosting WBUR's Morning Edition.



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