It is clear that Joel Tenenbaum broke the law when, as a 20-year-old student, he downloaded 30 songs from the Internet. And it’s also clear that his lawyer erred in presenting the case as test of Internet freedom. Tenenbaum is guilty, and he should pay. But the amount that a jury determined he must pay — $675,000 — flies in the face of common sense. It is far in excess of what is necessary to punish him and deter others from committing similar crimes. This punishment turns justice into an injustice.
It is unlikely that Tenenbaum, who just graduated from Boston University with a PhD in physics, will ever be able pay off this amount, which was awarded to four record companies in 2009. The huge sum stands in stark contrast to the $3,500 that the Recording Industry Association of America initially asked him to pay to avoid a lawsuit. Faced with similar threatening letters from the recording industry, thousands of other music-sharers simply paid up. Tenenbaum didn’t. He sent in a money order for $500, explaining that was all he could afford. The $675,000 penalty serves as a warning to anyone who dares to defy the recording industry.
The excessive penalty has caused the case to drag on for years. A judge declared it to be too high, and reduced it by a factor of 10. But music companies then persuaded an appeals court to reinstate the earlier fine, and to send the case back to the district court to use a different process to determine if it’s fair or not. The Supreme Court’s recent decision not to hear the case on procedural grounds ensures that it will drag on even longer.
The key problem is that the enormous penalty falls within the range of punishments stipulated by the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. The law, passed amid heavy lobbying from the recording industry, says the punishment for downloading a single song can be as high $30,000. It is unlikely that members of Congress had college students like Tenenbaum in mind when they passed the bill. A staffer for Senator Patrick Leahy, a co-sponsor, says he is more interested in “stopping illegal distribution of infringing material at the source, rather than pursuing the end user.” Even the music industry itself has wisely abandoned its pursuit of individuals to put the focus where it should have been all along: on commercial enterprises that reap millions from pirated music.
The recording industry has already taught Tenenbaum and millions of others like him a lesson. Why do Sony BMG Music Entertainment and Warner Brothers Records insist on hounding a 28-year-old into bankruptcy?