I want to start this article by stating that I do feel sorry for Joel… but I have no sympathy for him.
If you are unfamiliar with the case, here is the article written by none other than Joel Tenenbaum about his case: http://www.guardian.co.uk/music/musicblog/2009/jul/27/filesharing-music-industry.
To summarize: Mr. Tenenbaum downloaded music using one of the myriad file sharing programs that create peer-to-peer networks across the Internet, and allow you to download music (or videos, documents, and software) without paying for it. This is, of course, illegal, and tantamount to walking into a music store and stealing CDs and DVDs… with the exception that on-line you are much less likely to get caught.
I want to be clear, in this article I am not taking anything for granted; I am not assuming anything, filling in blanks, or making accusations. If I state that Mr. Tenenbaum stole that is because that information is written in his article. In the header of his article he does not say ‘I am accused of…’ he says ‘I shared music.’ Where I am speculating, I will call that out.
I first became familiar with this case because it was in the Toronto Star yesterday. I read the article with interest because I have heard for years of people being sued by the Recording Industry Association of America, but had never heard of one first hand. I suppose before I realized the true nature of the crime I was guilty of downloading music from time to time, and suppose that this could just as easily have been me as him.
Actually that is not true… Had my parents received a letter from the RIAA telling me that I had been caught and to settle it after they chewed me out at full volume they would have told me to take my attorney’s advice and to make the best settlement possible. Let’s assume that as I am not a teenager living under my parents’ roof the letter would have come to me, and I would have immediately contacted my attorney (my father in this case) who would likely have chewed me out at full volume, asked me if I had done it, and then told me to make the best settlement possible. Somewhere in there he probably would have called me a *** and told me I should have known better.
Four years ago (when Joel’s parents got the first letter) I was not in the best financial shape – mostly unemployed and going through a divorce, most of my expendable income at the time went to… well, food and rent. I would have had to negotiate the best terms possible, and then borrowed the money.
Joel did not do this… although he claims he did try to settle for $500, which at least shows good intent. However the RIAA did not accept this settlement offer; <speculation> they may have wanted to make an example, or to show that there were real consequences for pirating music. Five Hundred Dollars may be a significant amount to a college student, but it is not a punishment for breaking the law… at least not one that the RIAA was willing to accept. They, being the injured party, have that right.
The article spends a lot of time portraying this as a David versus Goliath conflict, which might be a little more believable if in this case the David had not been raiding the camp of the Goliath and contributing to billions of dollars of losses. He laments the fact that the RIAA has a tremendous legal team; should we feel bad about that? If I had over the course of fifty years grown a business worth billions and then a new technology allowed people to steal from me nearly unchecked then I would throw whatever resources I had against the perpetrators in a (mostly vain) attempt to stop them.
Since the advent of music piracy over the Internet (I know piracy predates the Internet, but doubt that the RIAA was losing real market share to people dubbing cassettes) I have heard the recording industry portrayed as the evil giant out to make money. Isn’t that what industry is about? ‘They charge too much';’ or ‘music is the public domain!’ or such. I agree that music is not cheap to purchase… but nor is it cheap to make. When recording artists demand huge contracts for their product then they are no longer creating art for art’s sake, they are producing a product that happens to be creative. However that does not change the fact that they still own their material, and we as consumers have the option to NOT buy them. We can listen to them on our favorite radio station, we can go to clubs and bars and dance to them; we can even often listen to them on-line. But stealing them should not even be a consideration.
Of course since music is not necessarily something you can touch let’s put the same argument into a different context, but with very similar intent:
I love cars. However cars are much more expensive than they used to be… I can’t afford a car now, but still want one, so I am going to steal one. I also have friends who like cars so I am going to steal one today, give it to my friend tonight, and steal a new one tomorrow… and am going to continue doing this until I get caught, at which point instead of taking responsibility I am going to stand up for every man and show the car companies that they cannot push us around.
Does that sound absurd? Exaggerated? The only difference is that because a car is physical you can only steal it once… Steal a song once and you can replicate that to hundreds or thousands of people who suddenly don’t have to buy it.
So the Recording Industry Association of America, representing recording artists, starts suing people. Apparently (according to the article) there have been 40,000 people contacted, most of whom settled. <supposition> The ones the RIAA are going after are likely some of the biggest offenders… if I steal (sorry… download and then share) a hundred songs then I am probably not even on their radar. However people I know… people I speak to merrily boast that they have downloaded tens of thousands of songs at no cost to them! I was sitting at a cafe speaking with a professional consultant on Monday who said ‘yeah I am glad my daughter downloads all of her music because it gets so expensive to buy it!’ I was in shock.
It happens for software too by the way… people look at me and say ‘yeah I download all of my software… but don’t worry, I paid for my operating system.’ They assume that because of my affiliation to Microsoft that I care about pirating Microsoft’s product, but would gladly condone stealing from Adobe. ‘But software is so expensive! Do you know how much Microsoft Office costs?’ Yes I do… and you have alternatives… if you are a student or only use it for personal use purchase the Home and Student Edition at a fraction of the cost. You don’t get all of the applications you get in Office Pro, but you probably don’t need Access or InfoPath. If that is still too expensive for your tastes then there are Shareware and Freeware applications that do just about everything that commercial applications do. ‘But they are not as good and don’t have all of the features!’ If you want the best bread you have to pay the best baker.
So Joel is in court… I believe today is Day 3. His article, like the lawsuit, is meant to shock us. ‘How it feels to be sued for 4.5 Million Dollars.’ I am sure it feels terrible… however chances are if it goes to judgment the judge would not grant the whole amount, and if they did then he likely could never pay it all anyways. Of course, if past acts and lack of remorse are any indication then he might
just steal it.
My opinion on this case is clear but that does not mean that I do not feel sorry for him, and by all means invite you to feel sorry for him too… but do not for one minute make the mistake of seeing him as the victim here; he perpetrated a criminal act, and was unlucky enough to do it against a very large organization with both the will and the means to pursue it vehemently… the RIAA may look like the Goliath here, but they are the victim in this case… the wronged party seeking justice.
I suspect that this case will become one for the books… Joel was fortunate enough to get pro-bono help from professors at the Harvard School of Law. I suspect that with them on one side of the table and the RIAA’s high powered attorneys on the other it will make for interesting (in one sense… let’s be clear that no court case has ever been riveting to watch except on TV) litigation but in the end I suspect it will still come down to the fact that Joel stole and enabled others to steal from the record companies. the settlement or judgment will likely be a fraction of what is being sought (that’s how it works). If Joel were to write a book I can’t see it being much more interesting than the article, and anyways the RIAA would probably sue for proceeds. If there is a confidentiality clause we may never know what the real figures are. However I hope that it finally convinces people that ‘sharing’ is stealing… as serious as walking into a store and taking it.