TOPIC:  SOCIAL MEDIA – Fair Use and Copyright

Essay #2:  Process with Comparison and Contrast

In this second essay, write about the process of determining fair use and copyright followed by a comparison and contrast of two contemporary cases of fair use violation.

Table of Contents for Social Media – Fair Use and Copyright

[Use the hyperlinks to navigate this document.  At the end of each reading, video, or podcast use the link Back to Table of Contents to return to the top of the document.]

Readings, Videos, and Podcasts on Fair Use and Copyright

Readings on Case #1:  Joel Tenenbaum

·         From cnet news

·         From Ben Sheffner’s blog Copyrights and Campaigns

·         From The Boston Globe

Readings on Case #2:  Jammie Thomas-Rassert

·         From Times Online

·         From cnet news

·         From Ars Technica

Reading and Podcast on Case #1 and Case #2 [Tenenbaum and Thomas-Rassert]

·         From cnet news

Case #1:  recent case of fair use violation:

Joel Tenenbaum and copyright Infringement – Illegally Downloading and Sharing Music on the Internet

From cnet news

http://news.cnet.com/8301-1023_3-10300915-93.html?part=rss&subj=news&tag=2547-1_3-0-5

July 31, 2009 10:30 AM PDT

BU student found liable in music-swapping case

by Marguerite Reardon

A federal judge ruled late Thursday that Joel Tenenbaum, a 25-year-old Boston University graduate student, has violated copyright infringement laws by illegally downloading and sharing music on the Internet.

Tenenbaum could end up owing the recording industry millions of dollars in damages for swapping music online. The jury is considering monetary damages on Friday. The question the jury must consider in assessing the damages is whether his infringement was willful. This will help determine how much in damages should be awarded to the four recording labels that sued him over the illegal file sharing.

The music studios are entitled to $750 to $30,000 per infringement according to federal law. But the law also gives the jury discretion to raise that to as much as $150,000 per track if it finds the infringements were willful. This means that if the jury gives him the maximum punishment, Tenenbaum could owe as much as $4.5 million.

Tenenbaum admitted on the witness stand Thursday that he downloaded and shared hundreds of songs. The studios suing Tenenbaum have only focused their case on 30 songs. Tenenbaum's lawyers said after he testified that he did not understand the implications of his admission, according to a story on the Boston Globe's Web site.

But the judge didn't buy it. U.S. District Court Judge Nancy Gertner said in her ruling that "Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute...and does so with respect to each and every sound recording at issue here."

While the music industry has taken legal action against file-sharing Web sites and other file sharers, only two cases involving individual file-sharers have gone to trial.

Jammie Thomas-Rasset from Minnesota also fought her case in court. Last month, a federal jury in Minneapolis ruled she must pay nearly $2 million for copyright infringement.

Most complaints against people sharing music illegally have been settled out of court, with defendants paying a total of about $3,000 to $5,000.

Updated at 4:10 p.m. PDT: The Boston Globe later updated its story to say the jury ordered Tenenbaum to pay the RIAA $675,000, or $22,500 for each song.

From Ben Sheffner’s blog

http://copyrightsandcampaigns.blogspot.com/2009/07/oy-tenenbaum-riaa-wins-675000-or-22500.html

Copyrights & Campaigns

Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Friday, July 31, 2009

Oy Tenenbaum! RIAA wins $675,000, or $22,500 per song

Here's my post-verdict piece, cross-posted from Ars Technica:

A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial.

The verdict came down at late Friday afternoon after about three and a half hours of deliberation.

When asked about the size of the verdict, Tenenbaum's attorney and Harvard Law School professor Charles Nesson told Ars that "it's a bankrupting award." He also felt things might have been different had they been allowed to argue fair use. "We were not allowed to speak to fairness," he told Ars. "I thought we had pretty damn good arguments on fair use."

"I'm disappointed, but not surprised, but I'm thankful that it wasn't much bigger, that it wasn't millions," Tenenbaum told Ars after the verdict was announced. We asked him if he regrets not settling earlier on in the process. "Ask me in a couple of months," Tenenbaum replied. He also told Ars that he doesn't have the ability to pay the judgment and said that he'd be filing for bankruptcy if the award stands. Although the jury found that he willfully infringed on the copyrights in question, Tenenbaum said he was "not displeased with the jury considering how the trial went."

What about the fact that the damages could have been much worse, as high as $4.5 million? "That to me sends a message that [the jury] considered [my] side legitimately," he replied. He was also evasive when asked if he regrets downloading music for free. "That's really a loaded question," he replied. "There are so many things that could have been different."

The RIAA was pleased with the verdict. "We are grateful for the jury’s service and their recognition of the impact of illegal downloading on the music community," the RIAA said in a statement. "We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work. From the beginning that’s what this case has been about. We only wish he had done so sooner rather than lie about his illegal behavior."

The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

And when he took the stand on Thursday, Tenenbaum admitted it all, including the fact that he had “lied” in his written discovery responses and at his first deposition in September 2008.

Tenenbaum’s admissions were so clear-cut, and so damning, that Judge Gertner—who had recruited Nesson to represent the formerly lawyer-less 25-year-old—took the basic issue of infringement away from the jury, determining that no reasonable jury could find for Tenenbaum on that issue. The jury of five men and five women, all white and all from the Boston suburbs, were left only to determine the issue of willfulness and damages.

Tenenbaum is only the second of approximately 18,000 individuals targeted by the labels to have gone to trial, and the second to lose. In June of this year, a Minnesota jury ordered Jammie Thomas-Rasset to pay $80,000 for infringing each of 24 songs, totaling $1.92 million. Last December, the labels announced that they were no longer initiating new cases against individual peer-to-peer users. However, they said they would see through to the end those cases already in the litigation pipeline. According to the labels’ attorneys, there remain about 100 cases pending where the defendant has filed an answer, about a dozen of which are being actively litigated in the discovery stage.

The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum’s counsel, Harvard Law School professor, who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element.

Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.

From The Boston Globe

http://www.boston.com/news/local/massachusetts/articles/2009/08/01/bu_student_fined_675000_for_illegal_music_downloads/

Student must pay $675k for songs

Jury votes damages for illegal downloads Lawyer calls verdict unfair; vows appeal

By Jonathan Saltzman, Globe Staff  |  August 1, 2009

A Boston University graduate student was ordered yesterday to pay four record labels a total of $675,000 in damages for illegally downloading 30 songs and sharing them online in only the second such lawsuit to go to trial.

After deliberating for about three hours, the jury in US District Court in Boston concluded that Joel Tenenbaum infringed on the copyrights of songs such as Nirvana’s “Comes As You Are’’ and Beck’s “Loser.’’ The record labels were awarded $22,500 for each infringement.

The verdict was reached the day after Tenenbaum, a 25-year-old doctoral student in physics, unapologetically admitted from the witness stand that he had illegally downloaded and shared hundreds of songs from 1999 to at least 2007 through peer-to-peer networks.

As a result of his admission, US District Judge Nancy Gertner ruled Thursday night that Tenenbaum had conceded liability, and she directed the jury to consider only how much he should pay in damages.

“I’m disappointed but not surprised,’’ Tenenbaum told reporters after the verdict in the civil case. “But I am thankful that it wasn’t much bigger, that it wasn’t millions.’’

Tenenbaum could have been ordered to pay as much as $150,000 for each song, or a total of $4.5 million, because the jury concluded that the infringements were “willful.’’ Under federal law, the jury had to award at least $750 for each infringement.

Tenenbaum’s mother, Judie of Providence, said that if the award stands, he will have to declare bankruptcy. “What choice would he have?’’ she said.

Earlier this week, she said that prospect was “horrible’’ considering her son’s misdeeds.

“We’re not talking about capital murder,’’ she said. “We’re not talking about Bernie Madoff.’’

The Recording Industry Association of America promptly issued a statement praising the jury for recognizing “the impact of illegal downloading on the music community.’’ An economist called as an expert witness by the record labels had testified that CD sales have plunged since 1999, largely because of file sharing, although Tenenbaum’s lawyers challenged that assessment.

The association also said it was pleased that Tenenbaum testified that he never intended to deprive recording artists of income.

“We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work,’’ the statement said. “From the beginning, that’s what this case was about. We only wish he had done so sooner, rather than lie about his illegal behavior.’’

Tenenbaum’s attorney, Harvard Law professor Charles Nesson, who told jurors his client is part of a generation that thinks nothing about downloading music for free, said he will appeal.

“It was not a fair verdict because the jury never got to hear the fairness issue,’’ he said. He was referring to Gertner’s ruling before jury selection that the defense could not argue that Tenenbaum had the right to download and share songs under the fair use doctrine of copyright law. Nesson said yesterday that the ruling is “vulnerable’’ to challenge.

Andrew Beckerman-Rodau, a professor at Suffolk Law School who specializes in intellectual property law, said before the verdict that he was puzzled that Tenenbaum did not settle the suit out of court before trial. The only logical explanation, he said, is that Nesson hopes to obtain a precedent-setting ruling on a matter such as the fair use doctrine, which he considered doubtful.

Regardless of whether Nesson appeals, his plate will be full with another matter related to the suit. Weeks before the trial, lawyers for the record labels asked Gertner to sanction him for taping depositions without the permission of the plaintiff’s lawyers. The lawyers said they would drop their motion if he destroys the tapes, but Nesson told the judge yesterday that he wants to keep them. Gertner has yet to rule.

As Joel Tenenbaum tells it, his battle against the recording industry was set in motion in 1993, years before he began to download music illegally.

Tenenbaum was 9 when he saw Michael Jackson perform at the Super Bowl halftime show and was so mesmerized that he told his parents he wanted to be a singer like the self-proclaimed King of Pop.

Tenenbaum gave up that ambition, but he still loves music and plays the piano. And as a skateboarding teenager in 1999, he began to amass a huge collection of music he downloaded, first from Napster, then from Kazaa, and later from other peer-to-peer networks.

A few years ago, he received a letter from the recording industry at his home in Providence demanding payment for songs he had shared online with potentially millions of other people. He is among about 18,000 people against whom the industry has sought to enforce copyrights.

Most settle out of court for $3,000 to $5,000, but Tenenbaum took the matter to trial. Although Gertner precluded both sides from presenting evidence about negotiations, Tenenbaum said on the witness stand and in an interview yesterday that he wanted to settle but the record labels kept increasing the sum. At one point, he said, he offered $3,000, but the labels insisted on $4,000.

Cara Duckworth, a spokeswoman for the recording industry, said Tenenbaum neglected to mention that at one point he demanded thousands of dollars from the labels and that he flagrantly continued to download.

In the only other downloading lawsuit to go to trial, a federal jury in Minnesota in June ordered a woman in that state to pay record labels $1.92 million for infringing on the copyrights of 24 songs.

Tenenbaum did not appear to help his case with his three hours on the stand Thursday. He matter-of-factly admitted lying in sworn statements to the record labels and falsely blaming others he said might have had access to his computer in Providence, including his two sisters, friends, and house guests.

After the verdict, Tenenbaum acknowledged that his lies might have hurt him with jurors. He said they never heard about how he had already admitted some of his falsehoods in other sworn statements.

In his closing argument yesterday, Nesson said his client “became addicted to free music’’ and implored the jury to award the most modest damages possible.

“What is the value of the infringement? It’s what he’d have to pay for it if he purchased it on Amazon . . . 99 cents,’’ Nesson said. “This is a federal case, and what’s it about? It’s about a kid in his bedroom clicking on a computer screen.’’

But Timothy M. Reynolds, one of the lawyers for the record labels, countered that “the defendant is a hard-core, habitual, long-term infringer who knew what he was doing was wrong but did it anyway.’’

Reynolds was among a team of lawyers for Sony BMG Music Entertainment, Warner Bros. Records Inc., Arista Records LLC, and UMG Recordings Inc.

For more information on the Tenenbaum litigation go to Ars Technica

http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars

Case #2:  recent case of fair use violation: Jammie Thomas-Rasset

Jammie Thomas-Rasset and copyright Infringement – Illegally Downloading and Sharing Music on the Internet

From Times Online

June 19, 2009 Julia Cheng AP

Single-mother digital pirate Jammie Thomas-Rasset must pay $80,000 per song

http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542.ece

A woman in Minnesota has been ordered to pay $80,000 a song to record companies for illegally downloading tracks and violating copyright laws.

A federal jury ruled that Jammie Thomas-Rasset willfully violated the copyrights on 24 songs, and awarded record companies $1.92 million.

The single mother of four from Minnesota was found liable for using the Kazaa peer-to-peer file-sharing network to download the songs over the internet.

Thomas-Rasset, 32, had been convicted previously, in October 2007, and ordered to pay $220,000 in damages, but the judge who presided over that trial threw out the verdict and ordered a retrial after he misdirected the jury.

The Recording Industry Association of America (RIAA) and big music labels have sued thousands of people for downloading and sharing music illegally, with most agreeing to settlements of between $3,000 and $5,000.

Thomas-Rasset was the first among those being sued to refuse a settlement and instead took the case to court, turning her into the highest-profile digital pirate in America.

She sat glumly, chin in hand, as she heard the jury's finding of wilful infringement, which increased the potential penalty. She raised her eyebrows in surprise when the jury's penalty of $80,000 (£49,000) per song was read out.

Outside the courtroom, she called the $1.92 million figure "kind of ridiculous" but expressed resignation over the decision.

"There's no way they're ever going to get that," she said. "I'm a mom, limited means, so I'm not going to worry about it now."

Her lawyer, Kiwi Camara, said that he and his client had not decided whether to appeal or pursue the RIAA's settlement overtures.

Cara Duckworth, for the RIAA, said that the industry remained willing to settle. She refused to name a figure, but acknowledged that Thomas-Rasset had been given the chance to settle for $3,000 to $5,000 earlier in the case. "Since day one we have been willing to settle this case and we remain willing to do so," Ms Duckworth said.

In December, the RIAA said that it would stop suing people who download music illegally to concentrate instead on getting internet service providers to take action. The move away from litigation represented an important shift in strategy for the music industry group, which had filed lawsuits in the US against some 35,000 people for online music piracy since 2003.

The focus on ISPs penalising illegal file-sharers is one of the main proposals in the new Digital Britain report published this week.

In testimony, Thomas-Rasset denied she shared any songs. The self-described "huge music fan" raised the possibility for the first time in the long-running case that her children or ex-husband might have done it. The defence did not provide any evidence that any of them had shared the files.

The recording companies accused Thomas-Rasset of offering 1,700 songs on Kazaa as of February 2005, before the company became a legal music subscription service after a settlement with entertainment companies. The music industry tried to prove only 24 exemplary infringements.

The court heard that Thomas-Rasset made the songs available on Kazaa under the screen name "tereastarr" – the same nickname that she acknowledged having used for years for her e-mail and several other computer accounts, including her MySpace page.

MediaSentry, the copyright security company, traced the files offered by "tereastarr" on Kazaa to Thomas-Rasset's IP address and to her modem.

The recording industry has blamed online piracy for declines in music sales claiming it has lost billions of dollars through illegal file-sharing.

From cnet news

http://news.cnet.com/8301-1023_3-10269251-93.html

June 19, 2009 11:43 AM PDT

Bankruptcy could protect Jammie Thomas

by Greg Sandoval

Prior to last year, bankruptcy court would not have sheltered Jammie Thomas-Rasset from the $1.92 million debt she owes the music industry. But a decision by the Ninth Circuit Court of Appeals in San Francisco could enable her to walk away from the debt, several legal experts said on Friday.

In a stunning jury decision on Thursday, Thomas-Rasset was found liable for willful copyright infringement and ordered to pay damages of $80,000 for each of the 24 songs she was accused of illegally file sharing. The 32-year-old is the first person accused of online music piracy by the Recording Industry Association of America who has taken his or her case to court.

(Credit: Greg Sandoval/CNET Networks)

This is the second time that a jury has ruled in the case against the Brainerd, Minn., resident. In October 2007, she was ordered to pay $222,000, but the decision was thrown out after the judge in the case acknowledged he erred in giving jury instructions. Thomas-Rasset has become the Joan of Arc of the file-sharing community. She has vowed to keep fighting. She's told reporters she hasn't the means to pay the RIAA, and wouldn't if she could.

Here's why bankruptcy court may be an option for Thomas-Rasset, according to Ira Rothken, the lawyer who has represented BitTorrent tracking sites such as TorrentSpy and Isohunt, and has a long record of defending clients against the entertainment industry:

He says that in the past, when someone was found liable of willful copyright infringement, the law prevented the defendant from discharging, or wiping out the debt in bankruptcy court. Last year, however, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court.

In trademark or copyright cases, "willful" means that a defendant knew what they were doing. According to the Ninth Circuit, bankruptcy laws mandate that for a debt to be non-dischargeable, a plaintiff must prove a defendant was "willful and malicious," meaning the person's intent was to cause harm.

Even entertainment lawyers agree that the Ninth Circuit's decision in Barboza makes it tougher for copyright owners to collect damages. Kathryn Bartow, an attorney with Manatt, Phelps & Phillips, a Los Angeles-based law firm that does extensive work for the major movie studios, wrote in a February issue of her firm's newsletter:

(Barboza) serves as a warning to trademark and copyright owners as well as the counsel who represent them in willful infringement cases. When presenting evidence and crafting jury instructions, beware. In willful infringement cases, to prevent an individual defendant from having its debt discharged in bankruptcy, the plaintiff should consider introducing sufficient evidence and including additional jury instructions to satisfy the Bankruptcy Code's definitions of 'willful and malicious.'

If the jury had only found Thomas-Rasset guilty of copyright infringement instead of willful infringement, it would have been easier for her to get rid of the debt.

"If she could have won on that point," Rothken said, "it would be absolutely dischargable without even having to have another hearing in bankruptcy court. She'd be going into a settlement discussion (with the RIAA) saying 'Look, if we can't settle it, I'm just going to go bankrupt and you're not going to get anything.' Now her conversation must be 'Hey, if we can't settle, I'm going to go forward and file for bankruptcy,' and they'll say 'Well, you'll have to have another trial.'"

Fred von Lohmann, an attorney for the Electronic Frontier Foundation, an Internet-user advocacy group, said that proving malice in bankruptcy court might be extremely hard for the RIAA.

"No. 1, I'm not at all sure that they'd be interested in trying this case again," von Lohmann said. "And No.2, I'm not sure they'd win. Just because you think she did it doesn't mean necessarily that she knew and intended to harm the industry. We know that lots of people are running Kazaa without understanding that they're sharing (the music files) at the same time."

Much of what happens next depends upon how settlement talks go between the RIAA and attorneys for Thomas-Rassert.

Since the second the jury's decision was read, the RIAA has said it wants to settle. The trade group for the four largest music companies repeated that sentiment on Friday.

"It was a jury of regular folks who rendered this decision," said Jonathan Lamy, a spokesperson for the RIAA. "We do not seek any specific damage awards. For the few existing cases, this verdict is a reminder of the clarity of the law. With any case, including that of Ms. Thomas-Rasset, we seek to settle these out of court. We stand ready and willing to talk settlement with Ms. Thomas-Rasset or anyone. We think that's most beneficial for everyone involved."

What Thomas-Rasset must consider before going forward is that she has lost twice in court. The legal costs for her may rise. As it stands, the RIAA can legally garnish her wages. According to Bloomberg, she works as a natural-resources coordinator for a Native American Indian tribe.

For the RIAA, the size of the damages stamps it with the bully label and backfires when it comes to public relations. That's the opinion of Ben Sheffner, a former entertainment lawyer and copyright proponent. He says the jury award also potentially hurts the RIAA if someone decides to challenge the damages on constitutional grounds.

"On the plus side, the decision sent a strong message," Sheffner said. Twenty-four "average Minnesotans with no ties to the entertainment industry have now said what she did was wrong and she deserves a strong punishment. On the other side, the size of the monetary damages could be used as serious ammo against the music industry."

From ars technica

A new lawyer, a new jury, and a new trial were not enough to save Jammie Thomas-Rasset. In a repeat of the verdict from her first federal trial, Thomas-Rasset was found liable for willfully infringing all 24 copyrights controlled by the four major record labels at issue in the case. The jury awarded the labels damages totaling a whopping $1.92 million. As the dollar amount was read in court, Thomas-Rasset gasped and her eyes widened.

Kiwi Camara, Thomas-Rasset's lead attorney, spoke briefly after the trial. He told reporters that when he first heard the $80,000 per song damage award, he was "angry about it" and said he had been convinced that any liability finding would have been for the minimum amount of $750 per song.

As for Thomas-Rasset, she appeared shaken by the verdict but didn't blame the jury. "They did their job," she said, "I'm not going to hold it against them." She added, though, that the recording industry would never collect the money. "Good luck trying to get it from me... it's like squeezing blood from a turnip."

The recording industry lawyers, though clearly pleased, had no desire to showboat this one. The massive damage award, which increased from $9,250 per song in the first trial to $80,000, might sounds like a "win," but will probably stoke grassroots anger against the industry's campaign... if the music business tries to collect. There are hints that it might not.

Spokesperson Cara Duckworth of the RIAA, who attended the trial, told reporters afterwards, "Since day one we have been willing to settle this case... and we remain willing to do so." The industry appears to be doing everything it can not to appear vindictive in these cases, though Duckworth refused to discuss any details of what a proposed settlement might look like.

Camara acknowledged the settlement offer and said that his side would certainly investigate it, but he made clear that he intends to file numerous motions if Thomas-Rasset wants to continue the fight. Motions on the constitutionality of such massive damages and other issues can still be filed with the judge, and then there's the entire matter of an appeal.

Thomas-Rasset sounds inclined to fight on. The case was "one for the RIAA, not the end of the war," she said. 

As for Camara, he intends to press ahead with his class-action lawsuit against the recording industry, in which he will take up the daunting task of trying to claw back all the money that the recording industry has collected in the course of its legal campaign to date.

Not good enough

A vigorous defense from Kiwi Camara and Joe Sibley was not enough to sway the jury, which had only to find that a preponderance of the evidence pointed to Thomas-Rasset. The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer's Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her "tereastarr" username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Camara suspects that the jury thought Thomas-Rasset was a liar and were "angry about it," thus leading to the $80,000 per-song damages.

The case is a reminder that in civil trials, simply raising some doubt about liability is not enough; lawyers need to raise lots of doubt to win the case, and Camara and Sibley were unable to do so here.

The jury found Thomas-Rasset's conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. In his closing statement, defense lawyer Joe Sibley made clear that even the minimum award would run $18,000 (24 songs x $750 = $18,000), an amount that he said was unfair and crippling to Thomas-Rasset. The jury decided that the per-song penalty would be $80,000, for a total damage award of $1.92 million, over $1.7 million more than the award in her first trial.

Use the hyperlinks to see the chronological order [the process] of Jammie Thomas-Rasset’s trial for copyright infringement [from ars technical]

• Day one: Jury selection

• Day one: The recording industry's major misstep

• Day two: Jammie Thomas-Rasset takes the stand

• Day three: Thomas-Rasset appears as the only defense witness

• Day four: Closing arguments

Reading and Podcast on Case #1 and Case #2

From cnet news

Joel Tenenbaum follows in Jammie Thomas’ footsteps

By Greg Sandoval July 28, 2009

http://news.cnet.com/8301-1023_3-10298079-93.html [Use this hyperlink to access a podcast with Tenenbaum’s lawyer Charlie Neeson]

Joel Tenenbaum just wanted to hear music and his illegal downloading and sharing of of songs caused little damage to the music industry, his attorney argued in court Tuesday.

Tenenbaum, a graduate student at Boston University, has been accused by the Recording Industry Association of America of copyright violations and the court fight is now underway. Like Jammie Thomas-Rasset, the Minnesota woman accused of illegal file sharing, Tenenbaum has decided to take on the major music labels in court rather than to settle the case.

Tenenbaum shares more in common with Thomas-Rasset than just initials. He is only the second person accused by the music industry of copyright infringement to take their case to a jury. The first was Thomas-Rasset. By refusing to settle with the RIAA, Tenenbaum risks being found liable for millions in damages. A jury in her home state ordered Thomas-Rasset to pay nearly $2 million. Her lawyers say that they will appeal the decision.

Tenenbaum is represented by Charles Nesson, the famed Harvard professor.

"He was a kid who did what kids do and loved technology and loved music," Nesson told the jury according to a report in The Associated Press.

One of the main differences between Tenenbaum and Thomas-Rasset is he has admitted sharing and downloading music illegally. Thomas-Rasset denies she is engaging in file sharing. According to Ben Sheffner, a copyright attorney who has worked for 20th Century Fox and now blogs about online copyright issues, Nesson is essentially fighting to limit the damages Tenenbaum will likely be required to pay.

"What Nesson is saying is that what Tenenbaum did isn't so bad and he didn't cause much harm," Sheffner said. "His overall point was that whatever harm was caused was due to the Internet in general, not because of what Joel Tenenbaum did."

Nesson argued that the Internet made it possible for fans to replace the CD with digital files, which freed consumers from having to buy songs they didn't want. He compared the digital music files and its effect on the music industry to how the "automobile swept into the buggy industry."

Another way that Tenenbaum has differed from Thomas-Rasset is that her trial by comparison was relatively free from courtroom drama. Nesson has appeared at times to invite it. He deputized one of his students to do much of the work in the case. Nesson was also accused of tape recording conversations that took place between both sides attorneys, which is against the rules. During jury selection, Nesson asked questions that didn't appear very significant, such as whether potential jury members liked his turtleneck sweater.

Nesson also took the unusual step of writing to the Department of Justice to step in.

"We ask you to intervene in Joel's case on behalf of the people of the United States of America," Nesson wrote, "to save the constitutionality of Section 504(c) by interpreting its damage provision for willful infringement to apply only to commercial infringers. If applied to such individuals as Joel, who has made no commercial use of plaintiffs' copyrights, the statute violates the Constitution."

Nesson is most famous for representing Daniel Ellsberg, the man who leaked the Pentagon Papers in 1971, against charges of treason leveled by the U.S. government. The Pentagon Papers revealed that the U.S. government had deliberately expanded the war in Vietnam and Southeast Asia. Ellsberg would eventually prevail.

According to Sheffner, U.S. District Judge Nancy Gertner has been less than impressed with the theatrics.

"I think there was a lot of talk in the press when Nesson came on that finally this prominent professor from Harvard was taking on the labels," said Sheffner, who has covered the trial for his blog. "They said 'Finally, someone is going to put (the music industry) in their place.' That hasn't happened, primarily because the law is simply not on their side and two because he's litigated this case in a way that has annoyed the judge."

One of the most significant setbacks for Tenenbaum, and indeed for anyone else who might challenge the RIAA in court, has been the judge's decision to prevent him from arguing that sharing copyright content on peer-to-peer networks is fair use.

The trial is schedule to continue Wednesday.

[This article was written before the verdict was reached on July 31, 2009]

Background Research on Copyright and Fair Use

Watch the video Copyright Exposed

http://www.loc.gov/teachers/copyrightmystery/#/copyright/

Click through the chronology of the evolution of copyright laws in Files on Record

http://www.loc.gov/teachers/copyrightmystery/#/files/

Click on the questions in the thought bubbles in Reading the Fine Print

http://www.loc.gov/teachers/copyrightmystery/#/reading/

Read about the process of obtaining a copyright in Steps to Copyright

http://www.loc.gov/teachers/copyrightmystery/#/steps/

Now go to the official copyright site  -- The Library of Congress – United States Copyright Office

http://www.copyright.gov/

For our purposes, read through the answer to the question –

Click on to FAQ in this site http://www.copyright.gov/help/faq/

Read the answer to the question:

Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?

Other resources

American University – School of Communication

http://www.centerforsocialmedia.org/resources/fair_use/

Listen to a podcast on Fair Use

http://centerforsocialmedia.org/files/mp3s/fair_use_pat.mp3

Stanford University Library - Copyright and Fair Use

http://fairuse.stanford.edu/

Copyright Website

http://www.benedict.com/

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