I spoke on Sunrise this morning about Joel Tenenbaum’s case in the US; a young university student who will now pay around three quarters of a million Australian dollars in damages to four record labels after a judge upheld a jury decision that could’ve maxed out at $4.5m USD.
Joel’s case is terrifying, only the second person in the United States to stand up to the record labels’ campaign of suing their customers for copyright infringement under the particularly pointy US copyright laws. Most people who have had action brought against them have settled out of court under the threat of galactic damages and legal fees for what amounts to copying songs for free when they should have paid $0.99 for them.
What’s particularly unique about this case is the way Joel chose to defend, unfortunately the judge found that the way he and his legal team – headed by a Harvard Law School professor – didn’t act with sufficient respect during the proceedings to have his particularly broad defence listened to. Joel didn’t argue that he didn’t do it, or that he didn’t do enough to warrant this sort of trouble, he instead tried to argue that each song that he downloaded was too insignificant to be considered an act of copyright infringement – a “fair use” defence. This hasn’t flown, at least in part due to Joel’s insistence on filing silly motions like trying to have the case televised, and it unfortunately sets a precedent that of the two cases that have gone to trial in the US, both have ended with astronomical damages for the defendant.
What’s this mean for Australia though? We don’t have these same laws, right? Well not yet we don’t. Our latest round of copyright law changes were as a result of a free trade agreement with the United States, extending copyright terms from 50 to 70 years after the author’s demise and polishing a bunch of other areas of our laws. In order to have access to free trade with the US, a condition is that we make our copyright laws as nasty as theirs and a new round of negotiations on this issue are due to be completed next year with the first discussions being held in secret in Morocco (this is the ‘ACTA’ agreement). It’s not unreasonable to think that down the track, our habit of copying United States legislation will mean that an Australian family will be mortgaging their house to cover a $750,000 fine for downloading a few songs.
Joel’s behaviour wasn’t great, faced with a perplexing 30km/h speed limit on an 8 lane straight freeway, he sped. That’s not the way the law works, we don’t get to break it just because it’s stupid. But EFA including myself, don’t excuse the behaviour of the recording industry in nailing their second victim to bankruptcy.