Two interesting developments this past week in the ongoing transformation of copyright law and copyright principles on the Net. In Boston, BU grad student Joel Tenenbaum was found liable for willfully infringing copyright* by (admittedly) downloading copyrighted music (using KaZaa and other p2p file-sharing services) and reproducing and re-distributing the downloaded files. It’s only the second of the dozens and dozens of lawsuits brought by the RIAA against individual file-sharers to reach a judgment (the other resulted similarly in a favorable verdict for the RIAA).
Tenenbaum’s lawyers — Charlie Nesson of Harvard Law and colleagues/students from the Berkman Center — have announced they’ll appeal, and they may have good grounds for reversal; the judge eliminated any consideration of Tenenbaum’s “fair use” defense, and, though I haven’t been following the litigation terribly closely, that ruling strikes me as questionable at best.
One interesting little aspect of the judgment: The jury awarded the record companies $675,000 in damages — $22,500 for each of the 30 songs on which the suit was based. As my colleague James Grimmelmann of NY Law School has pointed out, that’s a curious number for the jury to have chosen. The statutory damage provisions of the Copyright Act (17 USC sec. 504) allow a jury to award damages of $750 (minimum)to $30,000 (maximum) for each work infringed (which can be raised, or lowered, by the judge in certain circumstances). The minimum amount that the RIAA could have been awarded, then, would have been a total of $22,500 ($750 x 30 songs). Could it be they got mixed up, and instead awarded plaintiffs $22,500 for each song? Why else would they have chosen that amount? Strange …
UPDATE: Ben Sheffner has a pretty persuasive refutation, here, of the idea floated above that the jury screwed this up
But better news comes via Cory Doctorow over at boing-boing: “Record Company Embraces Use of its Music in YouTube Wedding Video, Makes Money.” The Youtube video “JK’s Wedding Entrance Dance,” which has become something of a viral sensation, featured Chris Brown’s song “Forever,” used without permission. Brown’s record label, instead of demanding that YouTube take the video down (which it could have done, successfully) and/or suing the folks who posted it (who now, incidentally, have their own webpage devoted to this particular video phenomenon), opted to add a link on the YouTube page where users can go to buy the original track. They have, as Doctorow puts it, “made a truckload of money.” Not only have their been loads of click-through purchases from the YouTube page, but in a kind of penumbra effect, Brown’s original track, and his own video, have, more than a year after release, zoomed back to the top of the iTunes and Amazon charts.
This is a story noteworthy only for its noteworthiness — that is, for the fact that this sort of arrangement is considered innovative and not Standard Operating Procedure for the record labels. The promotional opportunities presented by phenomena like this are prodigious, and have gone largely unrealized because of the labels’ largely unwavering enmity towards any infringing uses of their works. This is, hopefully, a harbinger of things to come. [And thanks to Sarah Post for pointing me to Doctorow’s story]
*[And thanks to reader Dave N. for correcting my earlier poor phraseology]