Since coming to BU I have been fortunate to hear some pretty remarkable people speak: from Elie Wiesel to John Krasinski, from Noam Chomsky to Michael Cera, not to mention many distinguishes guest-lecturers and professors. However, the talk/lecture/Q&A I just returned from may have been my favorite. Who was the star? This guy:
It is no surprise that you may not know who Joel Tenenbaum is, so I will explain. The explosion of the Internet in the 1990s gave a generation of tech-savvy teenagers unprecedented access to free and open music, movies, and software. File sharing, which rose to prominence with Peer2Peer (P2P) clients such as Napster, Kazaa, and Grokster, seemed to be part of the natural evolution of the Internet, and most importantly, everyone did it. People rightfully recognize the moral distinction between stealing a CD from a store and from clicking a button to download a song for free; in one case, a physical item is removed so that another consumer cannot purchase it, whereas in the other, a file is copied and distributed. The Recording Industry Association of America (RIAA), however, felt differently. Since the late nineties, this corporate giant has brought some 40,000 civil suites against their OWN CUSTOMERS who participated in online file-sharing. Most settled before going to trial, awarding the RIAA whopping sums in the thousands for downloading songs for free. Joel Tenenbaum is one of very few (only three exist that I know of) former copyright-infringing file-sharers to go to trial rather than succumb to the bullying of a multi-billion dollar industry group. That trial, which ended a few months ago, left Joel with an outrageous, in my opinion unconstitutional, fine of $675,000.
Essentially, Joel Tenenbaum is one of three people to stand up for our persecuted, prosecuted generation and our non-violent, non-criminal non-crimes.
I shared this sentiment with Joel today when I had the pleasure of meeting him following an introduction, a short lecture from him, and a Q&A with his Harvard lawyer Charles Nesson at the BU School of Law. Joel, a BU graduate student, was taken aback and insisted that he is no hero, just a normal student who studies across the river. But I insisted, letting him know how important his refusal to be bullied means to our generation. It was fucking awesome.
Joey and Chuck.
Equally awesome was the Q&A with famed Harvard Law Professor Charles Nesson. I will be completely honest: I knew I was going to be blogging about this event, but I assumed that within my blog I would attribute Joel’s botched trial to Mr. Nesson’s age and unfamiliarity with technology. I want to apologize for my obvious ageism because, honestly, despite his 71 years, Mr. Nesson is a shrewdly intelligent man with an acute awareness of the technological world, its history, and the culture surrounding it. I won’t try to summarize his extremely effective question and answer session, but I would like to provide a couple bullet points from it which just highlight the circumstances surrounding the trial and demonstrate what a raw deal Joel got:
- Fair use argument: It was originally Nesson’s plan to present an interesting variation of the fair use argument. Essentially what he intended to argue was that, at the time, the RIAA was putting out CDs with no digital rights management (DRM) and effectively provided the raw, unprotected files that formed the basis for P2P which allowed them to be uploaded to the Internet and shared with peers to begin with. Furthermore, at the time, there was no comparable product to the free instantly-accessible online music people downloaded via P2P. Enter iTunes. iTunes, when it was first launched, charged $0.99 per DRM protected song. What DRM on a file essentially means is that a file cannot be used anywhere except for on iTunes and on an iPod, in this case. Nesson argues that this is an inferior good; why would someone pay for an inferior good when they can get a superior good, an open file, for free? Good argument. I am not sure if all of that fell under his fair-use plan, however, I will share that we learned that it wasn’t until something like 1:42 am the morning before the trial that the judge informed the legal team that she would not hear a fair-use defense. Wow.
- The whole-sale price for a song, as claimed by Nesson, is $0.70. Therefore, he calculates, at most, Joel should be responsible for $21.00 in damages for the 30 songs he is accused of downloading. Nope. He is expected to pay $675,000.
- No jurors who had admittedly downloaded a song via a P2P client were allowed to serve on the jury. The youngest juror was 35 years old. Essentially, then, the jury was picked from a generation of people who don’t really understand what it means to illegally download a song via such a client; a generation of people whose knowledge of the Internet in general is quite cursory.
- The jury was told to name a penalty as much as $150,000 per song. As Nesson explained, this number was established back in the day when, for instance, the controversy with Vanilla Ice and his song “Ice Ice Baby” was happening. Such enormous fines were never meant to end up being handed down to kids like Joel. So, the jury actually thought they were being lenient by charging Joel with $22,500 per song, for a total of $675,000.
- Finally I’ll mention, as Nesson did, that Joel is a BU graduate student. He doesn’t have $675,000. It’s an unimaginable amount of money to expect him to pay, and frankly, no one expects him to. He is being made an example of. If they can’t get a new trial or get the penalty reduced, he’ll simply file for bankruptcy and injure his financial future.
Professor Nesson had a lot more to say, but I want to get to what I want to say. Frankly, the music industry as it is currently set up, is unsustainable. The Internet makes it so incredibly easy to access content like music for free that there is little to no incentive to continue purchasing it. Of course, many people, myself included, like to have a physical CD or vinyl in hand as a kind of keepsake, and that is all well and good. However, in most cases now, music will be accessed for free or for a small fee via the Internet. And I honestly think that is the way it should be. Yes, people should be paid for their work, but, in most cases, their fortunes don’t come from CD sales. Most of that money either goes to the recording company and, in some cases, Apple, when the songs are sold through iTunes. Musicians make most of their money from touring and merchandise. So what I am saying is cut out the middleman. Abolish the RIAA. Downsize the recording industry. Put the control and responsibility of art back in the hands of the artist. Additionally I will say that if our generation’s habit of downloading music makes musicians lives less glamorous lives, good. No one should feel bad about pilfering dimes at a time from the pockets of the world’s super-rich super stars. Support artists, yes, but honestly, look at their lives compared to the lives of their customers. Should there really be that divide, especially when so many of them are so talentless? I don’t think so.
At any rate, thank you Joel, and I am sorry that you are being held responsible for the behavior of an entire generation.