July 28, 2009 : A BU student in court for illegal music downloading

>> TONIGHT ON "GREATER BOSTON"
A PRICE TO PAY FOR ILLEGAL MUSIC
DOWNLOADS WHEN B.U. STUDENT
COULD BE ON THE HOOK FOR
MILLIONS.

>> ALSO TONIGHT, A WOMAN'S
DYING WISH REACHES HER FOUR SONS
40 YEARS LATER.

>> AND CLARA MORRIS, ONCE THE
MOST CELEBRATED ACTRESS, A NEW
BOOK REVEALS SHE'D BE RIPE FOR
TACK BLOID
TODAY -- TABLOID TODAY.
Closed Captioning
brought to you by AFLAC:
Ask about it at work.
>> Jared: GOOD EVENING, I'M
JARED BOWEN IN FOR EMILY ROONEY.
HOW ABOUT
DOWNLOAD -- DOWNLOADING MUSIC TO
THE TUNE OF $2 MILLION.
THOUSANDS LIKE HIM ARE DOING IT
EVERY DAY.
RECORD LABEL BOHEMITHS, SONY,
ARISTA AND UMG PLACED ILLEGAL
MUSIC DOWNLOADING ON TRIAL IN
BOSTON'S FEDERAL COURT.
THE LABELS CHARGE BOSTON
UNIVERSITY GRAD STUDENT JOEL
TENENBAUM ILLEGALLY DOWNLOADED
AND SHARED SONGS THEY OWN USING
THE SHARING SITE KaZaA.
MOST RECIPIENTS HAVE SETTLED OUT
OF COURT MAKING TENENBAUM ONLY
THE SECOND PERSON TO BE TRIED.
THE FIRST TRIAL IN MINNESOTA
LAST MONTH ENDED WITH A RECORD
INDUSTRY RECEIVING $1.92 MILLION
IN DAMAGES.
IF THEY PREVAIL AGAIN.
TENENBAUM MAY HAVE TO PAY AS
MUCH AS $150,000 PER ILLEGAL
DOWNLOAD OR IN THE NEIGHBORHOOD
OF $4.5 MILLION.
JARED JARED JOINING ME NOW ARE
ATTORNEY MARK FISCHER WHO
REPRESENTED THE MUSIC INDUSTRY,
ATTORNEY MICHAEL ALBERT AND
CLIFF KAZNOCHA THAT KNOWS THE
INS AND OUTS OF MARKET SHARING.
THERE WAS THIS MOMENTUM THAT
BUILT A FEW YEARS AGO.
THEN IT WENT AWAY BECAUSE
THERE'S THIS BIG P.R. BACKLASH
AGAINST THE RECORD LABELS AS
BEING THE CORPORATE GIANTS WITH
ALL OF THIS MONEY AT THEIR
DISPOSAL GOING AFTER A LOT OF
TEENAGERS THAT WERE DONE L
LOYDING -- DOWNLOADING BECAUSE
THEY DIDN'T HAVE THE MONEY TO
BUY IN THE FIRST PLACE.
>> COPYRIGHT AND THE MUSIC
INDUSTRY ARE IN GREAT
TRANSITION.
EVEN WITHIN THE MUSIC INDUSTRY,
THERE'S CONSIDERABLE DEBATE AS
TO WHETHER THESE KINDS OF CASES
ARE A GOOD IDEA OR BAD IDEA.
IN FACT, AA ANNOUNCED A YEAR AGO
THEY WERE BEGINNING TO WIND DOWN
THESE LAWSUITS.
THIS IS ONE OF THE LAST ONES.
I SUSPECT PROBABILITY RECORD
INDUSTRY WISHED THIS ONE HAD
SETTLED LIKE THE OTHERS.
>> Jared: THEY DIDN'T HAVE TO.
PEOPLE SETTLE ALL THE TIME UP
UNTIL THE LAST MINUTE.
WHY GO FORWARD?
>> HERE YOU HAVE A DETERMINED
ADVOCATE AND DETERMINED
DEFENDANT THAT WANT TO TAKE ON
THE MUSIC INDUSTRY.
THEY WANT IT BOTH IN THE COURT
OF LAW AND IN THE COURT OF
OPINION TO CHALLENGE THE MUSIC
INDUSTRY'S POSITION.
>> Jared: MICHAEL, HOW'S IT WORK
THAT YOU CAN GO FROM JOEL
TENENBAUM PAYING A COUPLE
HUNDRED PER SONG COPYRIGHTED
DOWNLOADED TO MILLIONS OF
DOLLARS?
>> THE JURY HAS A LOT OF LEEWAY
HERE AS TO HOW MUCH TO AWARD, UP
TO $150,000 PER SONG BUT
POSSIBLY AS LOW AS $750.
THE TRIAL REALLY IN THE END WILL
TURN ON THE AMOUNT OF DAMAGES.
SEEMS AS THOUGH MR. TENENBAUM
HAS FEW LEGAL DEFENSES LEFT.
THE JUDGE ALREADY RULED THE FAIR
USE DEFENSE DOESN'T APPLY HERE.
HE DOESN'T SEEM TO BE DENYING HE
ACTUALLY DID THE DOWNLOADING.
NOW, IT'LL ALL COME DOWN TO WHAT
THE JURY THINKS THIS IS WORTH.
WHAT'S A FAIR AMOUNT TO AWARD
WITHIN THAT RANGE ESTABLISHED BY
CONGRESS OF $750 TO $150,000 PER
SONG.
>> Jared: DOES IT UTTERLY IN THE
END DEPEND ON WHOSE LEVEL OF
CULPABILITY?
>> IT REALLY DOES.
THERE'S NOT A LOT OF GUIDANCE
THE JURY HAS IN TRYING TO DECIDE
WHAT A FAIR AMOUNT IS IN THAT
RANGE.
THAT'S WHY I THINK PROFESSOR ON
HIS BEHALF IS REALLY TRYING TO
PUT IN FRONT OF THE JURY A LOT
OF THE POLICY ARGUMENTS THAT
AREN'T STRICTLY SPEAKING
RELEVANT TO THE LEGAL ISSUE OF
WHETHER HE COMMITTED THE
INFRINGEMENT BUT MAY HELP
INFLUENCE THE JURY ON DECIDING
HOW MUCH TO AWARD.
>> Jared: CLIFF, THERE WAS THIS
HUGE JUDGMENT LAST MONTH WITH
THIS MINNESOTA WOMAN OF ALMOST
$2 MILLION, HOW PREVALENT IS
THIS AMONG PREVIOUS FILE SHARERS
AND DOWNLOADERS?
>> I CAN'T SPEAK NOW ABOUT IT.
IT WAS VERY PREVALENT IN THE
PAST.
I DO FEEL LIKE ALTERNATIVES,
iTUNES, ARE BECOMING
MORE POPULAR.
IT'S SOMEWHAT STARTING TO BE
CURVED.
>> Jared: HOW DO YOU FEEL ABOUT
THIS?
SHOULD THE RECORD COMPANIES BE
GOING AFTER THIS PEOPLE OR IS
THIS AN ACCEPTED PRACTICE WHOSE
TIME HAS GONECOME AND GONE?
>> I FEEL LIKE THEY SHOULDN'T BE
GOING AFTER THESE PEOPLE AND
MADE A MISTAKE BY NOT ADAPTING
TO THE NEW ENVIRONMENT AND GOING
AFTER MUSIC FANS AND THE PEOPLE
WHO LOVE ARTISTS REALLY JUST
ALIENATES THEM AND DOESN'T STOP
ANYTHING.
>> Jared: WHY IS THERE NO
CULPABILITY ON THE PART OF
DOWNLOADERS HERE?
CERTAINLY YOU CAN HAVE THE
PERCEPTION THERE ARE THE BIG
CORPORATE GIANTS WHO MAKE THE $1
MILLION-PLUS SALARIES AND SO
FORTH BUT ALREADY THERE ARE THE
OTHER SIDELINE PEOPLE THAT GET
AFFECTED, THE ENGINEERS AND THE
OFFICE PEOPLE THAT MAKE MUCH
LESS MONEY AND ARE AFFECTED WHEN
PEOPLE AREN'T OUT THERE BUYING
CD'S AND DOWNLOADING LEGALLY AND
ROYALTIES AREN'T BEING
DISTRIBUTED AS THEY ARE.
>> IT'S VERY UNFORTUNATE.
A LOT OF INDUSTRIES ARE GOING
THROUGH THIS TRANSITION RIGHT
NOW.
NEWSPAPERS ARE GOING THROUGH
THIS TRANSITION.
AND PEOPLE ARE GOING TO HAVE TO
ADAPT.
>> I THINK THE MUSIC INDUSTRY IS
REALLY CAUGHT IN A BIND HERE.
THEY HAVE THE LAW ON THEIR SIDE
BUT AT THE SAME TIME IT'S NOT
ENTIRELY CLEAR THAT THEY HAVE
THE COURT OF PUBLIC OPINION ON
THEIR SIDE YET.
THEY'RE CERTAINLY TRYING TO GET
THERE.
I THINK THERE'S BEEN A BIT OF A
BACKLASH TO SOME OF THE
DOWNLOADING CASES.
>> WE HAVE TO HAVE A BALANCE
BETWEEN HOW TO REWARD CREATORS.
I MEAN, HOW -- WOULD -- WOULD WE
HAVE HAD MICHAEL JACKSON OR THE
BEATLES IF AFTER THE FIRST
RECORD, THE LABEL SAID WE CAN'T
PROMOTE YOU, WORK A DAY JOB AND
YOU'RE ON YOUR OWN.
WHAT ABOUT THE WAY MUSICIANS,
MOZART THAT ONLY KNOWS MUSIC AND
DOESN'T KNOW HOW TO MARKET AND
PROGRAM HDML CODE.
WE'RE IN THIS GREAT POSITION.
IF WE DON'T REWARD THE ARTISTS
TO SOME EXTENT TO WHAT THE
PUBLIC FINDS FAIR, WE'RE GOING
TO ERODE OUR CULTURE.
COPYRIGHT IN MY VIEW HAS BEEN A
ROARING SUCCESS.
IT'S ENCOURAGED GREAT MEDIA,
GREAT ART FOR DECADES WITH THE
RISE OF THE INTERNET, EVERYTHING
IS CHALLENGED BUT WE HAVE TO
REPLACE THIS SYSTEM WITH
SOMETHING THAT WILL CONTINUE TO
INCENTIVIZE CREATORS TO CREATE
OR WE REALLY DO LOSE SOMETHING.
>> Jared: HOW MUCH OF THESE
SETTLEMENTS ARE HAPPENING?
THIS IS PART OF WHY IT WENT A
AWAY.
PEOPLE RECEIVED LETTERS IN THE
MAIL.
IS THAT HAPPENING FREQUENTLY AT
THIS POINT?
>> THAT WOUND DOWN CONSIDERABLY.
THERE WERE DEMAND LETTERS TO
COLLEGES, SCHOOLS, INDIVIDUALS.
NOTABLE CASES, A GRANDMOTHER
WOULD SAY, GEE, I DON'T KNOW
MUCH ABOUT THIS 50 CENT.
THAT'S SLOWED DOWN CONSIDERABLY.
>> THE VAST MAJORITY OF CASES
THAT THE MUSIC INDUSTRY DID
BRING WERE SETTLED.
AS SAID, THIS IS ONLY THE SECOND
PLACE THAT WENT TO TRIAL.
THE AMOUNTS THEY ASKED FOR IN
SETTLEMENTS WAS IN THE RANGE OF
$2,000 TO $3,000.
HERE, THIS DEFENDANT FACES THE
RISK OF BEING LIABLE FOR $4.5
MILLION.
>> Jared: THAT'S RIDICULOUS.
HE WON'T BE ABLE TO COME UP WITH
THAT MONEY.
THE WOMAN IN MINNESOTA ISN'T
ABLE TO COME UP WITH THAT KIND
MONEY.
WHY BOTHER?
>> THE RECORD INDUSTRY IS TRYING
TO MAKE A STATEMENT AND REMIND
PEOPLE THAT MUSIC DOWNLOADING IS
COPYRIGHT INFRINGEMENT AND
ILLEGAL AND THEY'RE TRYING TO
ESTABLISH IN THE COURT OF PUBLIC
OPINION A PERCEPTION THIS IS THE
WRONG THING TO DO.
>> Jared: CLIFF, WHAT SHOULD THE
IDEAL MODEL BE?
THAT'S PART OF THE PROBLEM HERE.
TECHNOLOGY IS MOVING SO QUICKLY
NOW IT CAN'T KEEP UP WITH A LOT.
THAT'S NAPPING SO MANY ARENAS.
>> I'M A BIG FAN OF SUBSCRIPTION
SERVICES AND STREAMING SERVICES
LIKE PANDORA AND E-MUSIC THAT
GIVES PEOPLE AN ALTERNATIVE WAY
TO ACCESS THE MUSIC THEY LIKE
FOR FREE OR FOR A LOW FEE BUT
NOT RISK BEING SUED OR GET A
THREATENING LETTER OR HAVE THEIR
ISP CUT OFF.
>> Jared: IF THEY'RE GETTING
MUSIC FOR FREE, HOW DOES THE
RECORD COMPANY THEN GET THE
MONEY THAT THEY'RE SUPPOSED TO?
>> WELL, UM, SITES LIKE PANDORA,
THEY HAVE AD REVENUE AND A
CERTAIN PERCENTAGE HAS TO GO TO
THE RECORD INDUSTRIES.
THERE WAS RECENTLY A NEW TAX.
I DON'T HAVE ALL THE DETAILS ON
IT THAT WAS RECENTLY A BIG
RESOLUTION.
>> CLIFF, YOU COULD BE A
CONTEMPORARY MUSIC EXECUTIVE
BECAUSE MANY OF THE THINGS
YOU'RE SAYING ARE EXACTLY WHAT
INSIDE COMPANIES ARE SAYING
ABOUT PANDORA.
IT'S A LARGE PART OF THE FUTURE.
I THINK MANY PEOPLE IN THE
INDUSTRY AGREE COMPLETELY WITH
YOU.
>> IN FACT, ONE OF THE THINGS
THE MUSIC INDUSTRY HAS BEEN
DOING WHILE THEY'RE WINDING DOWN
AS MARK SAID, THE CAMPAIGN OF
BRINGING THESE LAWSUITS IS GOING
AFTER THE ISP'S TRYING TO SHUT
OFF THE PEOPLE THAT ARE
DOWNLOADING THE MUSIC ILLEGALLY.
THEY'RE NOT TRYING TO USE THE
LEGAL SYSTEM QUITE DIRECTLY TO
BRING ABOUT A CHANGE BUT TRYING
TO CUT IT OFF IN THE ISP LEVEL.
>> I KNOW NOTHING ABOUT COMPUTER
TECHNOLOGY.
HOW ARE THEY TRACKING THESE
PEOPLE THAT THEY CAN GO IN AND
CUT OFF THEIR ISP AS YOU'RE
TALKING ABOUT AND KNOW JUST
EXACTLY WHAT THEY'RE DOWNLOADING
AND HOW IT'S BEEN DISTRIBUTED?
>> THE LEGAL SYSTEM COMES INTO
PLAY THERE, TOO.
THEY HAVE THE AUTHORITY
THROUGHOUT SUBPOENA POWER OF THE
COURTS TO LEARN IN SOME
INSTANCES WHO IS DOWNLOADING THE
MUSIC, WHERE IT'S COMING FROM
AND GOING TO.
THEY CAN GET THE ISP'S IN SOME
CASES TO GIVE THEM INFORMATION
LIKE THAT.
>> THIS IS ONE OF THE BIGGEST
INTERNATIONAL DEBATES IN
AUSTRALIA, ENGLAND, FRANCE,
OTHER COUNTRIES.
CAN THE ISP'S WHO OBVIOUSLY DO
VERY WELL IN THIS SYSTEM
DOWNLOADING AND UPLOADING,
SHOULD THEY BE BROUGHT TO THE
TABLE TO PAY ROYALTIES?
IS THERE BE THREE STRIKES OR
OUT?
SOME COUNTRIES PROPOSED IF
SOMEONE IS INFRINGING BY
UPLOADING OR DOWNLOADING
ILLEGALLY, THEIR ISP ACCOUNT
WOULD BE SHUT OFF.
>> Jared: THAT'S THE INTERNET
SERVICE PROVIDER.
IT'LL BE COMCAST?
>> OR THEIR EQUIVALENT AROUND
THE WORLD.
EXTREMELY UNPOPULAR.
ISP'S DON'T WANT TO BE ENFORCERS
OF COPYRIGHTS.
MANY PEOPLE IN THE CONTENT
INDUSTRY, NOT JUST MUSIC, MOVIES
VIDEO GAMES, PUBLISHING, FEEL
THE SAME WAY.
THAT'S ONE OF THE BIG DEBATES AS
TO WHETHER THE COMCAST, VERIZONS
OF THE WORLD SHOULD BE PART OF
THE ENFORCEMENT SYSTEM.
>> Jared: IT JUST MAKES NO SENSE
TO ME AS WELL WHY THERE'S SO
MUCH ATTENTION BEING PAID TO
PEOPLE LIKE TENENBAUM WHO ARE
VIRTUALLY THE MIDDLE MAN HERE.
THEY DIDN'T STEAL THE MUSIC
ORIGINALLY.
THEY JUST TOOK IT FROM ONE PLACE
AND DISTRIBUTED IT SO WHY THE
FOCUS THERE?
>> THE VIRAL NATURE OF THE
INTERNET IS IF YOU DON'T HAVE
PEOPLE RETRANSMITTING THE
INFORMATION, IT WOULDN'T
CONTINUE TO SPREAD THE WAY IT
DOES.
THE CONCERN IS IF YOU CAN STOP
THE PEOPLE WHO ARE TRANSMITTING
IT, THEN THE ILLEGAL DOWNLOADING
WON'T HAPPEN IN THE FIRST PLACE.
IT DOESN'T SEEM TO BE WORKING
BECAUSE THE CASES HAVEN'T
BROUGHT A STOP TO THE AMOUNT OF
ILLEGAL MUSIC SHARING ON THE
INTERNET, ALTHOUGH WHAT IS
INTERESTING, I THINK THERE'S
BEEN A BIT OF A SHIFT IN THE
CULTURE BECAUSE OF THE FACT THAT
OVER THE LAST SEVERAL YEARS,
THERE HAS BEEN THE AVAILABILITY
OF LEGAL DOWNLOADING OF MUSIC
FOR A FEE FROM THE THE INTERNET.
I THINK THERE'S AT LEAST IN SOME
SUBSET OF THE CULTURE A SENSE
THERE'S AN APPROPRIATE WAY TO
DOWNLOAD MUSIC AND YOU CAN PAY
FOR IT AND THE ARTISTS WILL BE
COMPENSATIONSATED FOR WHAT
THEY'VE CREATED.
>> THIS IS THE -- COMPENSATED
FOR WHAT THEY'VE CREATED.
>> Jared: THIS IS THE FIRST FULL
DAY OF TRIAL.
THANK YOU FOR COMING.
>> THANK YOU.