creative deconstruction

Is ‘Joel Fights Back’ Really the David to RIAA’s Goliath?

Posted on 03. Aug, 2009 by refe in NEWS

As many of you will have already heard, the RIAA won the second of two high profile cases this past Friday. This time it was against 25 year-old graduate student Joel Tenenbaum, described by the plaintiffs as a “hardcore, habitual, long-term, persistent infringer.” The jury awarded damages totaling $675,000. “It’s a bankrupting award,” remarked Tenenbaum’s attorney, Harvard Law professor Charles Nesson when asked about the number. And Joel thought paying off his grad school loans was going to be difficult. Most of the action during the trial was posted on Tenenbaum’s blog joelfightsback.com, or in real time via Twitter.

A lot has already been said about this trial, and I’m not interested in rehashing the details. However, this was certainly an important event, and there are a few things that I do want to weigh in on.

Let’s start with Joel Tenenbaum. Joel’s legal team (PR team?) has been trumpeting the slogan “Joel Fights Back” tenaciously over the course of this spectacle, painting their client as David bravely standing up to a terrible Goliath. The RIAA certainly fits the bill as Goliath – but does Joel Tenenbaum really make much of a David?

The RIAA has threatened approximately 18,000 individuals who they accuse of file sharing. They send a letter demanding settlements of up to $3,000, or, as the letters explain, they would drag them into court. I’m glad that that someone stood up to that kind of bullying and I’m happy that somebody “fought back.” I’m just not sure that this was the right case, or that Tenenbaum was the right defendant.

The Tenenbaum case has been something of a circus since well before the trial itself began. There have been all sorts of questions and allegations on both sides of the aisle as to the legality of certain witnesses and exerts, including Media Sentry, the company who captured screenshots of Tenenbaum’s computer which revealed over 800 songs in his share file. According to RIAA attorney Timothy Reynolds, as reported by Ars Technica:

Tenenbaum was a repeat miscreant, who started using Napster in 1999, turned to numerous other peer-to-peer services when the last one got shut down, and continued his infringement despite multiple warnings—including at least one from his own father—that he should stop. “Did he stop? Did he even consider it? Not at all… He actually increased both the size and scope of his infringement,” said Reynolds.

Tenenbaum apparently continued sharing music over P2P networks well into 2008. Perhaps the man thought he was proving a point, or sticking it to the man, or was simply confident that he could beat the RIAA at their own game. Or, more likely, Nesson had him convinced that his fair-use argument would make make his file sharing activity irrelevant (it was actually thrown out by the judge 8 hours before the trial even began.) Tenenbaum even admitted to lying on his written depositions. “Why did you lie at that point?” asked Nesson. “It was kind of something I rushed through,” replied Tenenbaum. “It’s what seemed the best response to give.” Why incriminate himself like that, only to then take the stand and admit to everything?

Joel Tenenbaum should have never gone to trial. Of the 18,000 people strong-armed by the RIAA there has to have been a better poster child. He was clearly guilty, which means that the only real option he and his legal team had left was to argue that the law itself is flawed. I think the law is certainly flawed in many ways, but that was never what this trial was about. So how was all of this ‘fighting back?’

As for the RIAA – I am consistently appalled by this organization in new and surprising ways as each new day passes. Is it unfair to accuse the RIAA of being a bully?

Bully – noun. A person who uses strength or power to harm or intimidate those who are weaker.
Verb. To use superior strength or influence to intimidate (someone) typically to force him or her to do what one wants.”

I’d say that the word ‘bully’ paints a pretty accurate picture. Why spend hundreds of millions of dollars (where do you think that money comes from, by the way?) to take or threaten to take legal action against tens of thousands of individuals they accuse of file sharing? During the trial one of the recording industry’s lawyers was asked whether the reason for these lawsuits was to “teach people a lesson.” His answer? A simple “yes.”

What does it say about the state of the recording industry that it bankrupts it’s own listeners in order to send a message? What is the message that they are sending? “We’ll get your money, one way or another.”

During the trial the recording industry’s expert economist, Dr. Liebowitz, declared music piracy to be the ‘only reason for the fall of the music industry after 1999.” For an ‘expert’ Dr. Liebowitz appears to be severely misguided. “Piracy” – which is really not piracy at all, but rather copyright infringement – is a symptom of the music industry’s disease, not the cause. The P2P movement, for all its flaws, is in many ways simply the fans’ reaction to years of being overcharged and under-served. Platforms such as Napster could have been an opportunity for the industry to recognize and respond to the way fans wanted to get their music. Instead, they have reacted by criminalizing an entire generation of music lovers.

Maybe Joel Tenenbaum’s quest to ‘fight back’ will bear positive fruit, maybe it won’t. In my mind this trial was a lose-lose situation for the parties involved. The RIAA gets to dive ever deeper into the pit of negative publicity, and Joel Tenenbaum is out six-hundred and seventy-five thousand dollars.

What do you think? Do you believe Tenenbaum was right to go to trial? What are your thoughts on the RIAA, P2P or copyright in general?

Tags: Charles Nesson, Copyright infringement, file sharing, Joel Fights Back, Joel Tenenbaum, RIAA