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Record-fine Napsterer wants retrial with RIAA

Blames Apple DRM

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A Boston University graduate student ordered to pay record labels $675,000 for illegally sharing 30 songs on Napster and Kazaa is asking a judge to grant him a new trial or reduce damages, which he claims are "grossly excessive" and unconstitutional.

Joel Tenenbaum and his copyright-shunning techno-Utopian attorney Charles Nesson filed a motion on Monday asking for another go in Massachusetts court, blaming Apple's formerly DRM-bogged music for further advancing copyright thievery as well as claiming the fine levied by a federal jury back in July is unfair.

Tenenbaum admitted that he illegally downloaded and distributed 30 songs. He was found guilty of breaking copyright laws and fined $22,500 per song.

The filing states that the court had been willing to recognize an "unfairness" for music consumers when Napster first emerged on the scene and made music easily downloadable by everyone at no cost while the music industry in contrast had initially refused to embrace selling digital downloads on a per-track basis.

"The Court reasoned that an 'unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fair' when there is a ready market or means to pay for the use,'" the filing stated.

But the court had refused to let Tenenbaum off the hook on this argument because some of his file-sharing was detected in August 2004 — after Apple established the iTunes store and "a commercial market for digital music had fully materialized."

One of the arguments for retrial Tenenbaum's attorney makes is that the court was mistaken on this issue because Apple did not make songs available DMR-free until 2007.

"The fact that digital media was DRM-free on Napster and Kazaa contributed substantially to their immense public appeal," the filing argues. "Encryption, by contrast, limited transferability and necessitated proprietary hardware and software to play the encrypted songs. The advent of iTunes did nothing to correct these deficiencies. The inconvenience of having songs only in an encrypted format was (and continues to be) altogether comparable to the inconveniences of having to buy a whole album to obtain a single song, or having to travel physically to a store instead of purchasing online."

The defense claims iTunes DRM "had essentially boxed music consumers like Tenenbaum into an unfair choice" of downloading unencrypted songs of the internet or buying a full album on CD.

If the judge is unwilling to reconsider the issue, Nesson asks the damages Tenenbaum must pay must be reduced, citing precedent from a Supreme Court case that ruled damages are invalid if they are oppressive and disproportionate to the offense.

During the trial, Nesson said damages should be as low as 99 cents per song — the equivalent of what Tenenbaum would have paid if he purchased the songs from iTunes. ®

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