Copyright Decision

From ARSTECHNICA

Eric Bangeman reports...

It's all over for Joel Tenenbaum—except for the size of the check he'll be told to write the RIAA. In a reversal of her decision last night, Judge Nancy Gertner has granted the record labels' motion for a directed verdict on the issue of copyright infringement. Tenenbaum is now liable for infringing all 30 songs at issue in the case. All that will be left to the jury is to determine the size of the damage award and whether the infringement was willful.

Judge Gertner's change of heart came after she had a chance to review the transcript of Thursday's testimony by Joel Tenenbaum. During direct examination, Tenenbaum was asked a simple question by the labels' counsel: "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?" His simple "yes" answer was enough to hand the labels a victory on the question of liability.

"Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no 'making available' ambiguity) and does so with respect to each and every sound recording at issue here," wrote Judge Gertner.

When the jury gets back to court Friday morning, they'll hear the closing arguments from each side and then decide whether Tenenbaum's infringement was willful and the amount of the damages that can be awarded. If the jury concludes that the infringement was willful, he could be forced to pay damages to the tune of $150,000 per song.

For all of the theatrics in the months leading up to the trial, things have gone down differently since the trial started Monday morning. Judge Gertner eviscerated Tenenbaum's Fair Use defense right before things got underway, and it has been all downhill from there for the defendant. Should the jury throw the book at Tenenbaum on the issue of damages, his counsel, Harvard Law professor Charles Nesson, will challenge the constitutionality of the damage provisions of the Copyright Act. But that's another chapter; this one is all but written.