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First Amendment 1, Recording Industry 0, in Downloading Case

By Tanya Roth, Esq. on December 11, 2009 | Last updated on March 21, 2019

It's a good bet that artists like Green Day and Nirvana (that is, minus Kurt) would approve of a ruling handed down December 7th by U.S. District Court Judge Nancy Gertner. Although the defendant in this illegal download suit, Joel Tenenbaum, is on the hook for $675,000 for illegally downloading 30 songs, his First Amendment right to criticize the major record labels for their policies is still intact. Seems like Billie Joe would approve.

The music industry plaintiffs sure didn't. Not satisfied with the monetary award, they also sought a ruling from Judge Gartner that she stop the BU doctoral student in physics from "promoting" the practice of file sharing. Shortly after the July 31st jury trial, a playlist of the songs Tenebaum was found guilty of downloading showed up on that notorious Swedish file sharing service, The Pirate Bay. Say what you will about those guys, they do have a sense of humor. Pirate Bay listed the songs including "Come as You Are" and Nice Guys Finish Last" as courtesy of "DJ Joel" and deemed it the "$675,000 Mix Tape."  DJ Joel evidently approved the Pirate shenanigans on the website he created about his trial.

Since the music industry plaintiffs couldn't reach the Swedes, they went after Tenebaum and asked the judge to silence his "promotion" of the illegal activity. Gertner refused saying, "The word 'promote' is far too vague to withstand scrutiny under the First Amendment. Although plaintiffs are entitled to statutory damages, they have no right to silence defendant's criticism of the statutory regime under which he is obligated to pay those damages.''

Tenebaum was delighted with the outcome. He told the Boston Globe, "She [the judge] categorically confirmed my First Amendment rights, and I'm thrilled about that. I'm just very pleased I can speak freely without the court having to come down on me for it.''

As a sidebar, the record labels were not the only players to go home with a rebuke from the bench. Judge Gertner also criticized defense counsel, Harvard Law Prof Charles Nesson, who she said had put on a "truly chaotic defense,'' missing deadlines, ignoring rules, and tape-recording opposing counsel and the judge...without permission. Not good, Harvard.

The labels tried to have the last word. RIAA spokeswoman Cara Duckworth said the association was pleased that Gertner had entered the judgment, ordered Tenenbaum to destroy all illegal music files and to "refrain from further theft of our music.'' One might suppose Kurt and the boys would object to the labels terming it "our music," don't you think?

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