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Joel Tenenbaum: Record Companies Try To Gag Student, Stop From Promoting Illegal Downloads

DENISE LAVOIE   12/ 7/09 05:52 PM ET   AP

Joel Tenenbaum

BOSTON — A graduate student who must pay four record labels a combined $675,000 in damages for downloading and sharing songs online has been ordered to destroy his illegal music files – but a judge declined to force him to stop promoting the activity that got him in trouble.

Joel Tenenbaum, a Boston University student from Providence, R.I., was ordered Monday to refrain from future copyright violations and to destroy copies of recordings he downloaded without authorization.

Record companies wanted U.S. District Judge Nancy Gertner to go further. They claimed Tenenbaum has been encouraging people to visit a Swedish Web site where they can illegally download the songs he was sued for sharing.

Tenenbaum said he had nothing to do with the Web site, and Gertner said she would not attempt to silence Tenenbaum's criticism of the recording industry and copyright laws.

Tenenbaum said he was pleased.

"She said, look, this isn't your business, he can say whatever he wants about the issue, he has First Amendment rights," Tenenbaum said.

Cara Duckworth, a spokeswoman for the Recording Industry Association of America, said the group was satisfied that the judge required Tenenbaum "to destroy all illegal music files and refrain from further theft of our music."

In July, a federal jury in Boston ordered Tenenbaum to pay $675,000 to four record labels for downloading and distributing 30 songs.

Tenenbaum's attorney, Harvard Law School professor Charles Nesson, said Monday that he plans to file a motion for a new trial by Jan. 4.

In a separate memorandum released Monday, Gertner described her reasons for rejecting Tenenbaum's "fair use" defense before the case went to trial in July.

Fair use is a legal doctrine that recognizes that the monopoly rights protected by copyright laws are not absolute. The doctrine holds that when someone uses a creative work in way that does not hurt the market for the original work and advances a public purpose – such as education or scholarship – it may be considered "fair" and not infringing.

Gertner said Tenenbaum acknowledged that a purpose of his song-sharing was so that his friends could enjoy the music – "that is, the very use for which the artist or copyright holder is entitled to expect payment as a reward."

Gertner said that although Tenenbaum's case does not constitute fair use, she could envision a fair-use defense for someone who shared files only during a period before the law concerning file-sharing was clear and before legitimate download services were widely available. She urged Congress to consider changing copyright law. The judge wrote that "there is a deep potential for injustice in the Copyright Act as it is currently written."

"There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood," Gertner added.

Duckworth said the industry disagrees with Gertner's assessment.

"Judge Gertner's hypothetical statements on fair use are not supported in the law, and courts have routinely rejected this theory since it would essentially strip copyright owners of the important right to control the use of their work," Duckworth said. "Regardless, it wouldn't apply to Mr. Tenenbaum, who admitted to illegally downloading music long after iTunes and other services emerged."

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Filed by Bianca Bosker  |