More high drama in the Tenenbaum trial, as defendant Joel Tenenbaum
cheerily admitted illegal downloading and uploading of the 30 songs for
which he's accused of copyright violations.
Ben Sheffner reports for Ars Technica
on Joel's witness box revelations:
“This is me. I’m here to answer,” said Tenenbaum. “I used the computer. I uploaded and downloaded music. This is how it is. I did it,” he testified before a packed courtroom.
“Are you admitting liability for all 30 sound recordings” on which the record labels brought suit, asked the plaintiffs’ attorney Tim Reynolds.
“Yes,” said Tenenbaum.
Tenenbaum then admitted that he “lied” in his written discovery responses, the ones in which he denied responsibility.
At first it looked like the judge was going to give the plaintiff record labels a directed verdict on liability but then, "out of a surfeit of caution," she ruled that the jury would get the issue.
The real issue though is wilfulness. It's clear the jury must find Tenenbaum liable. The question is whether they'll give the labels normal statutory damages or enhanced damages for wilfulness.
The judge made what I think is a terrible call there.
Judge Gertner said she will instruct the jury that “willful infringement is that committed with knowledge of or ‘reckless disregard’ for the plaintiffs' copyrights,” rejecting a heightened standard urged by Tenenbaum that would have required a showing of Tenenbaum’s intent to profit commercially.
Knowledge or reckless disregard must be the standard for the normal penalties. It would make no sense to assign these huge penalties for an innocent infringer (one who infringed from a reasonable belief that the work was not protected.)
The only sensible way to understand the enhanced penalties is for bad actors - someone trying to rip a copyright holder off for financial gain. Filesharers do not belong in this category. Filesharers are not pirates if by pirates we mean thieves, rip-off artists, counterfeiters.
The max should be $30,000 x 30 works = $900,000. I have a feeling the final verdict will be much, much higher than that.