Tenenbaum is a smart alec but you know, he has a point – a good point.
Tenenbaum, who if memory serves me, was pretty arrogant in dealing with the labels in his piracy suit is now trying to be a smart ass.
Here is his math.
He shared only 30 tracks on Kazaa so, he argues, the labels have no right to get $675,000 in damages. Tanenbaum simply cheated them out of 99 cents a track – using iTunes as the gold standard for digital music.
I think he’s got a good case and if I, acting as Judge Jerry with Tenenbaum standing before me, would likely grant his appeal and let the matter go on to a higher court if the labels protested -- which they most definitely would.
Of course, the labels do math another way – fuzzy math.
Tenenbaum put the 30 cuts in his share folder and millions of people then screwed the record industry out of 99 cents a tune. Or to put it like the drama queens record labels have become, “incalculable” damages.
In his latest papers, Tenenbaum argues, "This is completely false hyperbole. Not a single person who downloaded these songs using Kazaa would have been impeded from obtaining them had Tenenbaum blocked access to his share folder."
As presiding judge in that case, I’d be inclined to award Tenenbaum damages because he was not paid for all the publicity he provided the labels that probably resulted in hundreds of thousands of downloads at 99 cents a piece.
While I am half-kidding, I can’t figure out which half of the issue I’m kidding about.
Without fans getting to sample music before they buy, labels can sell nothing.
Radio sold records for decades and all they got was the ability to play the music for the labels who have a proven record of screwing artists. We tend to forget this, but the labels who now embrace these poor starving artists, are the ones who helped make them poor and starving.
I should mention that federal copyright law provides for damages from $750 to $150,000 per infringement but could sharing 30 tunes really do $150,000 worth of damage?
Only in the fantasy of a lawyer or legislator's mind could anyone come up with such arbitrary and meaningless numbers.
Well, you now know how Judge Jerry would rule, but the real Judge Shorty Long in this case is U.S. District Court Judge Nancy Gertner in Boston.
There is a similar issue before U.S. District Court Judge Michael Davis who already put a knife to piracy damages in the Jammie Thomas-Rasset case in Minnesota. He cut the award from $1.92 million to $54,000 drawing the ire of the RIAA and an appeal.
In the Boston action, the labels say Judge Gertner doesn’t have the authority to reduce damages.
Sounds like the lawyers are having fun with this issue while music industry sales continue to decline steeply.
The RIAA just can’t get out of its own way.
A few years back, it said no more suing consumers. Suing music pirates didn’t work anyway and if Jammie Thomas-Rasset actually has almost $2 million to repay the labels in her case, then I want to talk to her about investing in a growth business of mine – not the record industry.
Some 18,000 captured pirates later, the labels get chump change from scared students and parents (usually between $3-4,000) to make the lawsuits go away or in the case of Tenenbaum, Thomas-Rasset and a handful of others – a load of bad publicity and no money and exposure to a possible embarrassing legal loss.
And no deterrent to stop pirates in the future.
All risk. No benefit.
And no plan to go out and find new artists and make them rich which is apparently what the labels tell the courts they want to do.
Perhaps you’ve noticed that not much is happening right now in the labels’ attempt to get the performance tax exemption repealed for radio stations. Congress, a group of spineless poll readers, is divided on the issue.
Now maybe I’m missing something but everyone knows radio is in trouble. It’s likely never to be a growth industry again and while radio stations still help expose artists at no cost to the labels, why would you charge them taxes for helping you sell music?
I was enjoying playing the judge there a few paragraphs back.
So let me end with a final ruling.
Record labels have to pay radio stations and their present or past owners (or their estates) for all the free publicity they derived by getting so much airplay focused on so few records that the repetition alone harmed the radio industry.
I order costs and damages.
A percentage of every piece of product – single or album – that radio stations helped the labels sell.
Make it retroactive to 1945.
Case dismissed.
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