Peter S. Menell, Professor of Law,
University of California-Berkeley School of Law
February 17, 2010

A little more than a decade ago, Napster rocked the music industry by enabling anyone with a computer and an Internet connection to costlessly and virtually anonymously distribute files to millions of others.  As cyberculture journalist Joseph Menn observed at the time, more sound recordings were distributed through Napster’s peer-to-peer network during its first months of operation than occurred during the entire prior century of the recording industry.

The problem was (and remains) that the vast majority of those songs were distributed without authorization of the copyright owners (and without compensation).  It is not surprising, therefore, that worldwide record sales fell by more than half during the past decade and that the music industry is in disarray.  Competing with free has proven a daunting task for record companies, music publishers, authorized music platforms, as well as recording artists and songwriters.

After efforts to pursue operators of peer-to-peer networks proved ineffectual, record labels turned their sights on individual file-sharers beginning in 2003.  Most of the more than 35,000 file-sharing lawsuits settled, with defendants generally paying between $3,000 and $4,000.  But a few defendants stood their ground.

It was not until this past year that the first two file-sharing cases against individuals came to trial – one in Minnesota (Jammie Thomas-Rasset) and the other in Massachusetts (Joel Tenenbaum).  Prior to the trials, the defendants professed innocence.  They also argued that the record labels must prove that someone other than forensic investigators actually downloaded protected works in order to establish a violation of the distribution right.  Such an argument, if upheld by the courts, would greatly escalate the cost of pursuing those who distribute works through peer-to-peer networks while jeopardizing online privacy interests.  At a practical level, it would render copyright effectively unenforceable in the digital age.

The defendants also waged campaigns in the court of public opinion, seeking to coalesce a new social movement.  Tenenbaum’s defense team – a band of crusading Harvard Law students led by Professor Charles Nesson – reached out to the Internet-savvy, music-loving youth of America via the website:

Joel Tenenbaum is just like you.

Joel is a 25-year old graduate student at Boston University pursuing a physics PhD.  And he loves music.  We are just a small team of passionate students under the guidance of Professor Charles Nesson, committed to helping Joel fight back against the RIAA by legally and publicly representing him.

It’s not a vendetta.  It’s just that Joel chose to stand his ground.  It’s about defending the average Davids against the corporate Goliath.

Because Joel Tenenbaum is just like us too.

In essence, Joel was a brave and selfless victim who was standing up to oppression for the greater social good even in the face of potentially crushing liability.  The connection was made all the more vivid and intriguing when it was revealed that one of the sound recordings that Joel was alleged to have “shared” was “Rosa Parks,” Outkast’s homage to the great civil rights leader.

Let’s see how these social movements and social-movement leaders compare.  Even after the formal end of slavery, African-Americans suffered the injustice and indignity of segregation laws for nearly a century.  Those who disobeyed such laws faced grave consequences.  When Rosa Parks refused to give up her seat on the bus for a white patron, she was arrested.  Her act of civil disobedience and the boycott of public transportation that it inspired brought attention to the injustice of Jim Crow laws and catalyzed a broad social movement that transformed race relations in America.

How does Joel Tenenbaum’s act of civil disobedience compare?  For nearly a century, record companies charged music fans for records.  The companies used the revenues from these transactions to cover the costs of identifying promising recording acts, recording, manufacturing, marketing, and distributing sound recordings, paying royalties to performing artists, and paying mechanical license fees to music publishers (and songwriters whom they represent).  Rather than paying for sound recordings, Joel downloaded copyrighted sound recordings from KaZaA.  He then maintained those sound recordings in a share folder that could be accessed by potentially many others over KaZaA.

When Joel’s civil disobedience was brought to light through investigations of file sharing by copyright owners, he was offered the opportunity to avoid a lawsuit by paying $3,500 and agreeing to stop distributing the record labels’ sound recordings.  Joel refused the offer, but countered at $500.  The record labels declined the compromise and filed a copyright infringement action.  In his answer, Joel denied the charges and moved to dismiss.  He later filed a motion for summary judgment suggesting that other users of the computer in question might be responsible.  He noted that a visitor to the family home, family friend (possibly a visitor from Birkina Faso), foster son, or burglar could have committed the alleged acts of infringement.

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Joel offered a $300 settlement (with no admission of guilt).  He then filed several motions for sanctions against the copyright owners and a counterclaim for abuse of process.  As the costs of the litigation escalated, the record labels increased their settlement price.  No agreement was reached.

As the case moved toward trial, the tension mounted.   What would Joel testify?  In the face of overwhelming evidence of guilt, Joel admitted that he downloaded the sound recordings in question and shared them on KaZaA.  He also admitted to using many other file sharing networks: Limewire, iMesh, Morpheus, Napster, and Audiogalaxy.  The jury found Joel liable.  But would they effectively nullify the verdict through a minimal award?  The jury awarded the copyright owners $675,000 in statutory damages ($22,500 for each of the 30 songs shared).

In an interview posted on following the trial, Joel explained that “[a]rt is meant to be shared” while wishing “more than anything” that artists get compensated for their expression.  On the issue of how he would deal with the damage award if he could not overturn it on appeal, he explained that he planned to discharge it in bankruptcy.

I dare say that only Stephen Colbert, at his most facetious, could see the parallels between Joel Tenenbaum and Rosa Parks.  With a gleam in his eye and a smug smile, Colbert might sum it up simply: “Anyone can see that the comparison between Rosa Parks and Joel Tenenbaum is eerily similar.”  Both were victims of grave injustice who were willing to sacrifice for the greater good.  One wanted to end racial segregation and discrimination; the other wanted to avoid paying for music (but wished “more than anything” that artists get compensated for their expression), lied about it, tried to blame file sharing on others, ran up the costs of litigation, and, in the end, faced the music by saying that he would avoid the severe penalty through a bankruptcy filing.

The Internet has done much to facilitate the dissemination of information – for which it deserves great praise.  At the same time, however, it has revealed the incredible human capacity for rationalization.  As suggests, Joel is like (all too) many music lovers today.  Rather than pay 99 cents for a digital download of a sound recording that they like or about $15 per month for unlimited access to subscription services offering vast libraries of copyrighted sound recordings, many feel entitled to free access thanks to the wonders of peer-to-peer technology (and the relatively low risk of getting caught).

Joel Tenenbaum’s defense sought to disguise selfish motivation and self-righteous indignation at paying a penalty for violating copyright liability as a cynical and disingenuous social movement.  This was not a case involving political speech or transformative user-generated creativity.  This was not a case of mistaken identity.  Nor was it a case where the recording industry sought maximum damages; recall that the plaintiffs offered to settle up-front for $3,500 – reflective of the costs of investigation and enforcement, with some deterrent bite.

This was a case about not paying for sound recordings, not paying a justifiable penalty for not paying for sound recordings, and running up the costs of litigation though dishonesty and vexatious litigation.  In the short run, this social movement promises that many music fans will have more money in their pockets and more sound recordings on their computers and portable devices; and that record labels, music publishers, recording artists, and composers will have less to show for their efforts and talents.

But in the longer run, Joel’s logic erodes the economic infrastructure of creators and the dynamic capacity of market institutions to build productive and reinforcing relationships between creators (not just composers and recording artists, but also authors and filmmakers) and fans.  That is the purpose of copyright and it has provided critical support for composers and recording artists for a century; and authors for even longer.

This is not to say that the recording industry has operated flawlessly throughout its history.  Record labels’ bundling of sound recordings and short-changing of recording artists deserve criticism.  But crippling the copyright system is not the solution.

If, as Joel professes, the answer lies in compensating artists for their expressive creativity, then the logical approach is to support – not undermine – market institutions.  Composers and sound recording artists are increasingly able to produce, market, and distribute content without the need for traditional record labels in the digital age.  New artists and a growing number of legacy artists that have broken free from their record labels are deriving a much higher percentage of the market value of their work from digital distribution.  But if the fans don’t participate in the digital marketplace, it is all for naught.  Even 90 percent of nothing is less than 10 percent of something.

Re-engagement by fans in the marketplace would hasten the shift away from unbalanced practices of the past and the development of more direct market relationships between recording artists and their fans.  Technological advance and free market competition can rectify failings of the recording industry, but only if fans don’t throw out the baby with the bathwater.  Refusing to participate in the digital marketplace and undermining the enforceability of copyright protection is already having this result.

In addition, Joel could work to develop serious alternative compensation mechanisms for creative artists.  If copyright enforcement cannot be improved, then other approaches may be needed – such as levies or new enforcement institutions.  Calibrating these mechanisms would be politically and practically difficult, which reinforces the importance of trying to get copyright to function effectively in the digital age.

This painful chapter in the transition to digital distribution reveals that although Joel Tenenbaum may have shared “Rosa Parks,” he is no Rosa Parks.  His defense team’s choice to employ the rhetoric of social-justice movements devalues other, legitimate social movements, misleads the public, and obscures the critical legal issues of his and analogous cases – the scope of copyright’s distribution right and how statutory damages should be applied in file-sharing cases.  The strategy backfired in district court.  It should similarly be seen for what it is in the court of public opinion.

Comments From Our Readers

Lon Sobel: Peter’s comparison of Joel Tenenbaum with Rosa Parks is the most illuminating couple of sentences ever to come from the keyboard of a law professor. (“Both were victims of grave injustice who were willing to sacrifice for the greater good. One wanted to end racial segregation and discrimination; the other wanted to avoid paying for music (but wished ‘more than anything’ that artists get compensated for their expression), lied about it, tried to blame file sharing on others, ran up the costs of litigation, and, in the end, faced the music by saying that he would avoid the severe penalty through a bankruptcy filing.”)

How refreshing it is to have someone notice, and say aloud, that the emperor has no clothes. And this from the keyboard of a professor from Berkeley, no less! Hurray.

I wonder whether Peter’s insight is the product of his education as a lawyer, or the product of his education as an economist. (In addition to holding a J.D., he has a Ph.D. in Economics.) I’m a lawyer and fellow law professor (with a B.A. in Economics); and I fear that law students, lawyers and law professors can actually hold in mind, all at one time and without getting a headache, the belief that “art is meant to be shared” and the wish that artists be paid. I hope it doesn’t take an economist to understand that those two things cannot coexist — not at least if “shared” means “without paying,” as Tenenbaum and thousands of others use the word “shared”?

David Eaton: Well said.  Being the victim of the theft of my productions to the tune of $700,000, I am quite pleased to see the illegal file sharers put in the light of ‘truth’ and be revealed for what they are.

Michael: Another way artists are fallen victim to the music industry is by being ripped off by all the so called “producers” out there.  It seems if you have pro tools and a computer, then you can call yourself a producer and they try to justify their fee, some as being as high as $7500 a song, by knowing how to work pro tools.  In my opinion, most new bands who want to record an album need only an engineer, which cost about 20 dollars an hour.  If the so-called producer could write a song then he would have an album out, but most not only charge you an outrageous fee, they also want ownership of the song you had to pay for.  Be aware of any producer who charges an outrageous fee and wants ownership of the song you had to pay the outrageous fee for.