A few days ago, I attended oral arguments before the First Circuit Court of Appeals in the case of Joel Tenenbaum, a graduate student being sued by various record labels for sharing music files via a peer-to-peer service over the Internet (Sony v. Tenenbaum, docket available here). I’ve already written up some of my thoughts about the possible outcome of Joel’s lawsuit over at my regular blog, Legally Sociable.
Here, I’d like to expand my analysis somewhat to cover Tenenbaum’s broader implications. Many CMLP blog readers may be asking themselves, “So what? What could swapping MP3’s on the Internet possibly have to do with the activities of citizen journalists?”
Under an ideal intellectual property regime, the answer would doubtless be “very little.” Non-commercial use of music for personal entertainment bears little logical resemblance to news reporting, analysis, and advocacy. One might reasonably imagine that IP law treats P2P music downloading differently from blogging about the news.
Unfortunately, in the real world, the law ends up treating blogging almost exactly like file sharing because both activities primarily fall within the purview of copyright law. Moreover, 17 U.S.C. § 504(c) provides extremely flexible statutory penalties “as the court considers just.”