Student must pay $675k for songs

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

BU graduate student Joel Tenenbaum said he was thankful his fine ‘wasn’t much bigger, that it wasn’t millions.’

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 ver dict 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.