The man who’d hoped to rewrite the rulebook on filesharing is now certain to be convicted. Joel Tenenbaum’s hopes now lie with a sympathetic jury awarding minimal damages.

Judge Nancy Gertner has ordered a directed verdict meaning that the jury will be forced to return a guilty verdict when it retires today. Gertner’s decision came after Tenenbaum’s courtroom testimony in which he answered yes to the question “on the stand now, are you admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?”

Before deciding on a damages figure, the jury must consider whether Tenenbaum acted willfully in breaching the copyrights. Tenenbaum’s defense had argued that this should only be the case if he had profited from his actions. However, Gertner has ruled that the threshold is whether he either knew the files were subject to copyright or showed “reckless disregard”.

That point could make a significant difference to the damages. For simply breaching the copyright Tenenbaum faces a fine of between $750 and $30,000 per offense ($22,500 to $900,000). If he is found to have acted willfully, the potential fine rises to $150,000 per offense, or a total of $4.5 million.

Tenenbaum’s case had largely collapsed after Gertner barred his lawyers from arguing that filesharing was covered by the fair use provisions of copyright law.

Perhaps the most interesting note of the prosecution strategy during the trial was that attorney Tim Reynolds – the same man who led the prosecution of Jammie Thomas-Rassett – did not try to claim that Tenenbaum had cost the record industry an amount equivalent to the retail price of every illegally downloaded song.

Instead he acknowledged that it’s impossible to prove the exact losses but insisted the filesharing had caused “significant harm”.

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Entry was posted on Friday, July 31st, 2009 at 12:20 pm under Music, Piracy.

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