Court Strikes Fair Use Claim

Boston University graduate student Joel Tenenbaum will pay a $675,000 fine to the Recording Industry Association of America for illegally sharing music online unless a court rules to reduce the fine in a subsequent trial.

The judge issued an injunction against Tenenbaum, preventing him from sharing music but refused to issue a gag order intended to prevent Tenenbaum for advocating piracy on his private Web site.

The suit, which was filed in 2008, is only the second claim against an alleged file sharer that has gone to trial and has not been settled out of the courtroom.

Derek E. Bambauer ’97, a former fellow of the Law School’s Berkman Center of Internet and Society, said that Charles R. Nesson ’60, a Harvard Law School professor and Tenenbaum’s attorney, is most likely going to challenge U.S. District Judge Nancy Gertner’s ruling, which states that Tenenbaum’s file sharing is not covered under fair use laws.

“Fair use is a question that ought to be resolved by a jury,” Bambauer said. “How much Joel [should] have to pay...seems out of proportion for the damage that he actually caused.”

Bambauer said that Tenenbaum’s defense could have presented a more “robust” argument for the application of fair use law, partly by utilizing more economic data and statistics.

According to Bambauer, fair use law is ambiguous, in part because “there is a disconnect between what feels free and what is actually free.”

But in recent years, the RIAA—an organization that represents recording industry distributors—has taken an aggressive stance against unlicensed file sharing. According to RIAA spokesperson Cara A. Duckworth, the RIAA has settled over 10,000 suits since 2003, collecting between $2000 to $3000 from each plaintiff.

“This is about appreciating music and all the people who work hard to make it,” she said. “It may just look like a digital file on your computer, but there are dozens and dozens of people who work behind the scenes to bring that song to your ears.”

Though Bambauer said he believes that the law should be changed if it is a law that nobody can understand, he said he sees a future to file sharing that would not involved illicit activities.

“[File sharing] is efficient, it’s robust, it’s sort of disaster proof,” he said. “Don’t share music or movies. Do use it to share things that are legal—your photos, your homework, Shakespeare.”

—Staff writer Xi Yu can be reached at xyu@college.harvard.edu.