$675,000 fine for downloading 30 songs

Yep, that’s $22,500 for each of the 30 songs that Mr. Joel Tenenbaum admitted to downloading and sharing. The jury was kind enough to lower the RIAA’s initial valuation of the damages down from the $150,000 to which they are entitled for willful copyright infringement.

The Boston University student was defended by Professor Charlie Nesson of Harvard Law School and the Berkman Center, who (in classic Charlie Nesson style) turned this into a tremendous opportunity for a group of his students (Yay Charlie!). Tenenbaum was only the second person to take the RIAA to court after receiving one of their thousands of letters. More than 30,000 others have settled their cases for between $3,000 – $12,000.

One of the things that surprises me–although I suppose it shouldn’t–is how often the public library metaphor comes up in these discussions. Mr. Tenenbaum said of downloading music, “it was like this giant library in front of you.” Supporters on his Joel Fights Back site say that calling downloading music illegal is like illegalizing public libraries. And while I in NO WAY want to defend the behaviour of the RIAA, I think this both misses the point and does a disservice to libraries. Libraries have to purchase their materials. They lend them on good faith assuming you will return them, not give them away. Too often the ‘free culture’ movement devolves into a rant about how all culture should be ‘free’ for the consumer. All you have to do is go back to Lessig to be reminded that when we talk about free culture, we don’t mean ‘that kind of free’ (from Free Culture, p. xiv):

…we come from a tradition of “free culture”—not “free”as in “free beer”(to borrow a phrase from the founder of the free-software movement), but “free”as in “free speech,”“free markets,”“free trade,”“free enterprise,”“free will,”and “free elections.”A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limit-ing the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free.

3 thoughts on “$675,000 fine for downloading 30 songs

  1. I think you are confusing the arguments for free culture here. Firstly, accepting that there are a number of different flavours of free culture is vital, particularly as Lessig represents one of the more conservative version of it. Secondly, free culture is about freedom to use media in new ways – especially (although not necessary limited to) in non-commercial ways which in the past have been unregulated (Lessig’s point). Thirdly, free culture is linked to the way in which the conversion of information and knowledge into property rights has dangerous implications for the ability to use said knowledge and information within a public sphere – that is in terms of debate and transformative uses that enhance the public realm.

    Anyway, I strongly disagree that free culture is limited to freedoms for the ‘consumer’, rather it is about the citizen. See The politics of the libre commons for a discussion of these issues in more detail.

  2. I think my arguments are not as well nuanced as yours, Dave, which probably masks the fact that I agree with you. I agree that the free culture debate should be about using media in new ways. What frustrates me about so much of the current discourse, though, is that three years after you pointed it out in your article, most arguments still take place within a moral register. You said:

    Claims to authority are made by reference to a priori human rights divorced from the political realm. Decisions are made between “right” and “wrong” (note the quite deliberate scare quotes) on the basis of a supposedly shared morality. There is then no ground for further discussion, as the terms of the decision have already been set a priori. This has dangerous consequences.

    And I think this is still the primary problem with 95% of the free/libre culture debate. The references to public libraries then seem to try and tap into this moral register by arguing that if you don’t think all downloading and filesharing is ok, you must also think that public libraries are bad. I think this does a disservice to libraries and to the whole free/libre movement.

  3. That is an interesting point but bound up in the meaning of the word free, of course. Especially as public libraries are ‘free’ as in freedom and ‘free’ as in gratis to use. Clearly they are not ‘free’ as in peer2peer pirate networks, but some pirate networks do nontheless perform library-like services (as Vaidhyanathan points out in The Anarchist in the Library) also as Bodo Balacz points out in relation to pirate networks.

    I actually think, though, that particularly in the UK libraries fall too far on the other side whereby they attempt to appease the copyright industries before thinking about the consequences for the citizen that they are there to serve. I am thinking here about the British Library’s recent tie-up with Microsoft on an essentially proprietary platform to hold some of the Nation’s treasured archives. Here, if anywhere, was a place where the questions raised by free culture should have been more carefully thought through in terms of open access, lock-in and what the library of the 21st century could and should be.

    Here I am thinking of your convincing argument that libraries have to move from a 20th Century idea of being mere book ‘managers’, to being proactive partners in utilising information archives. Giving Microsoft the contract in a sense positions the British Library as mere ‘content manager’ between the library visitor and data stored in Microsoft software. I suppose when a library starts talking about ‘content’ its not a great sign…

    David