Copyright Infringement
“Student who illegally downloaded music ordered to pay $675k”
Joel Tenenbaum, a Boston University graduate student is being ordered to pay four record labels for illegally downloading and distributing 30 songs on a peer-to-peer music website. Jurors decided that $22,500 is a reasonable fine for each song that represents willful copyright infringement. He has admitted to downloading over 800 songs throughout the years and is still fighting this lawsuit that would eventually lead this 25-year-old to bankruptcy.
Tenenbaum’s decision to argue fair use was declined in court. According to the textbook, fair use is a test used to determine whether or not infringement exists in a situation involving use of a copyrighted work. Tenenbaum argued that although he did download the songs for free, he did not download entire albums, which would hurt an artists’ market even more. He also said that his use of the material was not for commercial use, which is often the case with infringement lawsuits.
According to the textbook, I’ve noticed that the following criteria are examined when trying to determine fair use:
1. The purpose and character of the use: In Tenenbaum’s case, the use was for nonprofit, personal enjoyment. However, downloading free songs does not have an educational, critical, or research purpose, either.
2. The nature of the copyrighted work: This is more clearly defined as factual information v. creative works. Music is harder to define because it is solely a creative work, whereas a factual document could be dissected to determine amount of material used and whether fair use is present.
3. The amount and substantiality of the portion used: As Tenenbaum argued, he downloaded individual songs only and not entire albums from the website. His logic is probably centered around factual fair use examples, where a few paragraphs from a book can be used in a classroom discussion or a few minutes of a videotape can be used for news purposes. However, I think which songs he downloaded should also be taken into account. Were they the hit singles from the albums? Some of the most legendary songs by the artists?
· Upon further research, I found that the songs Tenenbaum is being sued for downloading are songs from popular rock bands like Nirvana and the Red Hot Chili Peppers. Songs like Nirvana’s “Come as you are” and the Chili Pepper’s “Californication” are indeed, radio-hit songs.
4. The effect on the plaintiff’s potential market: Tenenbaum argued that the reason behind his song-sharing was to let his friends and family enjoy the music and added, "that is, the very use for which the artist or copyright holder is entitled to expect payment as a reward." The textbook states that using the most important information from a copyrighted source, even if the amount is acceptable , does not constitute fair use. Quoting the last line of a mystery novel could hurt the author’s profit on future sales of that book, so why wouldn’t free hit singles hurt the purchase of an album?
With more factors tilting outside of his favor, fair use was not considered a valid defense in this case. Tenenbaum was ordered to pay $22,500 for each song and act of willful infringement.
In some articles, it mentions that Tenenbaum was using a Swedish file sharing website to download his music for free. Upon further research, I’ve found that the popular website Kazaa is the mp3 system that Tenenbaum was using. Why didn’t the website itself get dragged into this case?
Napster was an illegal peer-to-peer file sharing network, just like Kazaa. Napster was aware that it was allowing users to commit copyright infringement, as it was the sole purpose of the website. The recording industry sued Napster for allowing the infringement to continue.
Why isn’t the RIAA trying to kill the symptom, but not the cause? Tenenbaum would have never committed infringement if this site did not exist and allow it to happen. And oh yea, is Tenenbaum the only user on the Kazaa interface to download songs illegally? Since this is a Swedish-based operation, I’m surprised that there is no issue involving the Berne Convention and the fact that Kazaa is letting users download illegal songs from artists all over the world.
Decades ago, before mp3s and file sharing lawsuits emerged, music buffs relied on compact cassette tapes to pay and play their musical interests. They were also used to record songs from the radio.
When Sony invented the VCR, they were sued for copyright infringement because users could record copies of television programs. The court decided that although users could make unauthorized copies of shows or aired movies, this was not the sole purpose of the VCR and Sony did not encourage users to do so. VCRs were used for more “time-shifting” purposes, so viewers could watch programs at a later time.
Were audio cassettes also used for time-shifting purposes? Could that be considered fair use as well? What’s the difference between downloading a song off of a free internet website and recording it from a free source, such as the radio? Even the concept of TiVo is still an undecided factor under copyright law.
The concept of internet downloading may need another examination under the copyright looking glass.
Sources
http://en.wikipedia.org/wiki/RIAA_v._Tenenbaum
http://www.firstamendmentcenter.org/news.aspx?id=21943 – Student who illegally downloaded music ordered to pay $675k
http://www.firstamendmentcenter.org/news.aspx?id=22380 – Student ordered to destroy illegally downloaded music files
Textbook: The Law of Journalism & Mass Communication
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