Joel Tenenbaum filed a final brief on Feb. 18, 2010 in Sony BMG Music Entertainment v. Tenenbaum, in the U.S. District Court for the District of Massachusetts. The link is to his attorneys' thoughtfully posted PDF of the brief. In sum, the lawyers are arguing for relief from the statutory damages of $150,000, stating that the company's lost profit is about 35 cents. Apparently, it's also substantially similar to the amicus brief filed in the same case and linked above by the attorneys, on May 18, 2009 by the Free Software Foundation.
On January 4, 2010, Tenenbaum's lawyers also filed this motion arguing that the $675,000 awarded in damages by the jury was violative of Tenenbaum's constitutional due process rights. The motion asks for a new trial or remittitur. (Remittitur means reducing the damages)
For all the RIAA matters, an excellent source of full text materials online is the Electronic Freedom Foundation (eff.org). For any of these if you use their excellent and very simple search function to look for the defendant's name (Joel Tenenbaum for instance, or Jammie Thomas) you can pull up a history of the case and lots of full text motions and briefs from what they call their DeepLinks Blog.
So, what about Jammie Thomas-Rasset, that other high-profile downloader sued by the RIAA and slapped with huge damages? She allegedly downloaded and shared 24 songs. A federal jury returned a verdict for the RIAA in 2006 for $222,000, or $9,250/song. The judge, however, Michael Davis, found that he had given a mistaken instruction to the jury, telling them that making the songs available to others constituted copyright infringement regardless of whether the friend actually downloaded and listened to the song. So a second trial had to be held, with correct instructions given to a new jury. But that jury returned a verdict against Thomas-Rasset for $1.92 million, or $80,000/song. On January 22, 2010, Judge Davis reduced the damage to $54,000 (remittitur!), calling the jury award "monstrous and shocking." If you follow the link to the Cnet story about this, you will see the author telling that his connections in the RIAA wish the Jammie-Rasset story would go away. They do not wish to pursue this any further.
Now, a few days after Judge Davis reduced the damages, the RIAA approached Ms. Jammie-Rasset and offered to settle the case with her for $25,000, less than half the damages that Judge Davis had set. She rejected this offer. Jammie Thomas-Rasset's lawyers told Cnet and RIAA that they wanted the damages to be zero. Sadly, in their letter to Thomas-Rasset, the RIAA told her that if she declined their offer, they would challenge the judge's reduction of the damages in further court action. So, I guess they are committed to this somewhat insane course of action.
And one last interesting link is to the Wired Threat Level feature for February 5, 2010, which has an article analyzing the Google Books project, "The Authors Guild: To RIAA or Not to RIAA". Here is the original blog post at the Authors Guild blog, dated February 5. It was titled, "To RIAA or Not to RIAA, That was the Question," and stated in part,
Some authors and authors' groups have asked why we didn't press the litigation through to the end. The answer (besides the benefits we saw for authors in creating new markets for out-of-print works), in part, is that copyright litigation is uncertain. Fair use law is complex. One could fill a good-sized law-school classroom with copyright professors who believe that Google's scanning of your books is a fair use. We don't agree with that view, but our opinion may not have prevailed. If we'd lost, it would then be open season on scanning of your out-of-print and in-print books. All one would need is a scanner and a friend with a little bit of technical knowledge to start displaying "snippets" at your science fiction, humor, Civil War, or Harry Potter website. All perfectly legal; all without obligation to authors to properly secure those scans. Nothing gets illegal file-sharing going quite so much as millions of unsecured digital works floating around the Internet.The decoration for this blogpost is courtesy of New York Magazine online, at a post from 2008, RIAA, What Settlement Money? http://nymag.com/daily/entertainment/2008/02/riaa_what_settlement_money.html
We also could've won. That would've been sweet. But here's the thing: copyright victories tend to be Pyrrhic in the digital age. Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.
It didn't work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn't truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.
All that couldn't happen to the book publishing industry? Sure could. The technologies are out there.
The stakes are even higher for authors than they've been for musicians. The ace in the hole for musicians is that they're not as dependent on copyright as book authors are. Music is a performing art: people buy tickets to see musicians. Writing is decidedly not a performing art. Nearly all authors give away their performances, through book tours and readings, and are glad for any audience they can find. For most authors, markets created by copyright are all we've got.
Protecting authors' interests has always been our top priority: in this case a timely harnessing of Google was the best way to do it.