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The recording industry is bringing to bear the full might of its lobbying and litigation power. And one defendant, Joel Tenenbaum, is fighting back with the help of Leading Internet lawyer, Charles Nesson, and a team of his students.

new trial, please.

Earlier today, we filed this Motion for a New Trial and Remittitur to Judge Gertner, the same judge who presided over the original trial. (BTW, remittitur is fancy legal talk meaning a ruling by a judge lowering the amount of damages granted by a jury — usually,  because the amount awarded exceedes the amount demanded.) What we filed highlights errors we believe were made during the trial and in Judge Gertner’s subsequent opinion denying Joel’s fair use defense (the opinion is here), along with our argument that the crippling award of $675,000 can not stand because it is unconstitutionally high. The music industry will have a chance to respond, and then Judge Gertner will rule on these issues sometime in the next few months.

This post is an attempt to explain the basics of our motion in less legal jargon.

• The first error we think Judge Gertner made was identifying the introduction of the iTunes Music Store in 2003 as the end of a time period when Joel could have had a fair use claim. We were happy to see that Judge Gertner’s opinion accepted our argument that the recording companies’ unwillingness to offer music consumers an authorized online source comparable in utility to what was available to them on Napster put music consumers in an unfair position. Somewhat perversely, however, Judge Gertner did not allow Joel to make this argument, since she believed that the music industry tipped the scales back in its favor when Apple began selling individual downloads for $.99 each.

We explain in our motion that this conclusion lets the industry off way too easily and incorrectly denied Joel a chance to make a fair use claim. For years after the limited introduction of the iTunes store -– remember? it initially launched with just 200,000 songs and was only for Mac -– the industry’s insistence that music be sold encumbered with DRM made the songs sold on iTunes much less useful than those that could be found on filesharing networks.  Who wanted songs tied to a particular computer and a particular mp3 player when CDs themselves were playable and rip-able without restrictions?

It was only after Steve Jobs posted his famous open letter explaining all the problems with DRM and begging the industry to abandon their failed experiement that the industry gave consumers like Joel a genuine alternative to file sharing networks. Judge Gertner thus should have placed the end of what she calls the “interregnum” sometime after the end of the DRM-era, and not in 2003 as she did. Since Joel was caught sharing in 2004, we contend, once the proper time frame is identified, he should have been given a chance to present this defense.

• Even if Judge Gertner refuses to revisit her position on fair use, we nonetheless believe that the damages must be reduced substantially under the Due Process clause of the Constitution. Our argument on this point comes directly from a nearly hundred-year old Supreme Court case that said that damages awarded according to a specific statute (as in this case, since the Copyright Act specified a range of damages) are invalid if they are “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” The Supreme Court has more recently extended that logic to cases where very large damage awards have been levied against corporate defendants, but we don’t even need to rely directly on those cases. After all, if it’s not “obviously unreasonable” to bankrupt a PhD student for sharing a few songs on Kazaa without the record industry even alleging any direct harm that came from his file sharing, then what is? Judge Gertner’s consideration of this issue has been explicitly postponed until now, and we are optimistic that she will recognize just how unfair it would be to force Joel to pay $650,000 to the record industry for sharing 30 songs.

We also make a few other arguments that are more technical in nature having to do with the redaction of a letter Joel sent to the record companies offering to settle several years ago and with the proper balance of power between the judge and jury in copyright cases. However, we wanted to articulate the primary arguments on this blog because they should clear as day to even non-lawyers. After all, who doesn’t remember just how inferior music encumbered by clumsy DRM protection was before the record industry finally caught on? Likewise, who could possibly think that a massive and entirely arbitrary verdict of $675,000 for sharing songs valued at (at most) $30 comports with any of our traditional notions of fairness and Due Process?

Thanks for your support. You can keep up-to-date on the progress of the case on this blog and via our twitter feed, @joelfightsback.

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