Tuesday, December 08, 2009

RIAA: They can make him pay, but they can't make him go away

According to Wired.com, Judge Nancy Gertner declined the RIAA request to censor Tenenbaum’s Twitter commentary criticizing the RIAA and, according the the RIAA, inciting his followers to piracy.

"Although plaintiffs are entitled to statutory damages, they have no right to silence defendant’s criticism of the statutory regime under which he is obligated to pay those damages,” Gertner wrote. “This court has neither the desire nor the authority to serve as the censor of defendant’s public remarks (.pdf) regarding online file sharing.”

Gertner also expanded on a pretrial ruling in which she declared Tenenbaum could not render a so-called “fair use” defense. Tenenbaum claimed that his file sharing was not counter to the Copyright Act. The act provides up to $150,000 in damages for each infringement, and the figures are left to jurors.

The only other accused file sharer to go to trial against the RIAA was Jammie Thomas-Rasset. The RIAA won a whopping $1.92 million verdict against the Minnesota woman this summer for sharing 24 songs on Kazaa.

In the last six years, the RIAA has sued about 30,000 individuals for file sharing. Most defendants have settled out of court.

The RIAA is winding down its litigation campaign against individuals, and is instead working with internet service providers to come up with plans that might lead to cutting off internet access for repeat, digital copyright scofflaws.

In the Tenenbaum case, the judge wrote Monday that Tenenbaum’s version of fair use was “so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent.”

That ruling was a major blow to what was expected to be a key point of argument for the Berkman Center for Internet and Society, which represented Tenenbaum and is now seeking a new trial. Ahead of the summer trial, Gertner precluded the fair-use defense with a brief order without much elaboration.

The judge gave the Berkman Center until Jan. 4 to seek a new trial. Among other positions, Tenenbaum is also likely to argue that the damages were unconstitutionally excessive, according to Charles Nesson, Tenenbaum’s lead attorney. “Applications of huge statutory damages to individual people to individual people like Joel is unconstitutional,” Nesson said in a telephone interview.

He said he would also ask the court to reduce the verdict to $22,500 — the minimum $750 per song allowed under the Copyright Act.
The Joel Fights Back image is from the website http://joelfightsback.com/ built and sponsored by the Charles Nesson team representing Joel Tennenbaum. The website says "comments closed." Apparently, Joel is now fighting back on his own, via Twitter.

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