I spoke on Sunrise this morning about Joel Tenenbaum's case in the US; a young university student who will now pay around three quarters of a million Australian dollars in damages to four record labels after a judge upheld a jury decision that could've maxed out at $4.5m USD.

Joel's case is terrifying, only the second person in the United States to stand up to the record labels' campaign of suing their customers for copyright infringement under the particularly pointy US copyright laws.  Most people who have had action brought against them have settled out of court under the threat of galactic damages and legal fees for what amounts to copying songs for free when they should have paid $0.99 for them.

What's particularly unique about this case is the way Joel chose to defend, unfortunately the judge found that the way he and his legal team - headed by a Harvard Law School professor - didn't act with sufficient respect during the proceedings to have his particularly broad defence listened to.  Joel didn't argue that he didn't do it, or that he didn't do enough to warrant this sort of trouble, he instead tried to argue that each song that he downloaded was too insignificant to be considered an act of copyright infringement - a "fair use" defence.   This hasn't flown, at least in part due to Joel's insistence on filing silly motions like trying to have the case televised, and it unfortunately sets a precedent that of the two cases that have gone to trial in the US, both have ended with astronomical damages for the defendant.

What's this mean for Australia though?  We don't have these same laws, right?  Well not yet we don't.  Our latest round of copyright law changes were as a result of a free trade agreement with the United States, extending copyright terms from 50 to 70 years after the author's demise and polishing a bunch of other areas of our laws.  In order to have access to free trade with the US, a condition is that we make our copyright laws as nasty as theirs and a new round of negotiations on this issue are due to be completed next year with the first discussions being held in secret in Morocco (this is the 'ACTA' agreement).  It's not unreasonable to think that down the track, our habit of copying United States legislation will mean that an Australian family will be mortgaging their house to cover a $750,000 fine for downloading a few songs.

Joel's behaviour wasn't great, faced with a perplexing 30km/h speed limit on an 8 lane straight freeway, he sped.  That's not the way the law works, we don't get to break it just because it's stupid.  But EFA including myself, don't excuse the behaviour of the recording industry in nailing their second victim to bankruptcy.


  1. To think that you are going to be treated fairly in a court for a copyright violation in this day and age is delusional. I know that people keep using these cases in the hope that it will trigger a rethink of copyright, but get real - this is a political issue (and government is hardly going to bite the hand that feeds it).

    Comment by Stuart on 9 December 2009 at 22:26
  2. Stuart, why can't this be used as a springboard to rethink copyright? In the past this is exactly how it's happened, people start breaking or sidestepping copyright law and copyright law is reworked to take into account new technology, etc.

    Think Piano Roll, Cassette Tape, CD, VHS, all these things were set to destroy industries and all of them provided

    Comment by Greg on 10 December 2009 at 00:02
  3. We have to ask ourselves, how does a legal system become so corrupt that simply copying a few bytes of information is amongst the most heinous offences any person can commit.

    Our society can never sufficiently advance into the digital age so long as these draconian laws continues to exist in their current form.


    Comment by Dan on 13 December 2009 at 02:17
  4. The best escape is to totally avoid old-style copyright material, stick to old public domain works or new works under the creative commons licenses.

    If it's copyright, it sucks.

    Comment by meika on 21 December 2009 at 23:10
  5. The only people who are outraged about this are people that still want music for free and think that musicians have no rights to get payment for their music.

    Joel Tenenbaum was a seeder - he had been warned prior to his being prosecuted that his activities were illegal and that he should discontinue and he chose to ignore the warnings and carry on. He knew it was illegal to upload songs to virally share with millions of other free-loaders. File-sharing an artist's songs for free is stealing and enabling million of others to steal the song with nothing going to the creator/artist who should be getting payment for people's enjoyment of their music.

    When you sign up with your internet provider part of the agreement is that you must not use the service for any activity that breaches any law or violates any local, state, federal or international law, order, regulation or industry code of practice such as content which violates the copyright or other intellectual property rights of others. You assume all risks regarding the determination of whether material is in the public domain.

    99c for song is not much to ask to have loved music on your player. These days there are plenty of ways to get music on-line where you can sample the music before buying so there is no excuse to illegally download - people just do it because it is free (but not so anonymous anymore it seems)

    Comment by Chelsey on 22 December 2009 at 01:31
  6. Chelsey, whether it's illegal or not isn't the point. The point is that such cheap products are being sued for astronomical damages far out of proportion to their worth. What's more, will the artists see any percentage of these court-awarded damages?

    I'm a musician, I pay for all of my music, and I'm extremely outraged over these secret negotiations and overkill damages.

    Comment by Dane on 23 December 2009 at 23:19