Professor Charles Nesson, Founder of Harvard’s Berkman Center for Internet and Society has come to the defense of Joel Tenenbaum, who was among dozens of people who appeared in court in RIAA cases without legal help.

The 24-year-old Tenenbaum is a graduate student accused by the RIAA of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. (See RODRIQUE NGOWI’s story on myway.com–exerpt below.)

“Professor Nesson is argueing that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the Recording Industry Association of America, or RIAA - carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.”

According to Professor Nesson’s blog, this case is about more than standing up to a Mafia-like RIAA that is out to teach kids like Joel Tenenbaum, “that there is a real world out here. It’s a world of pain imposed on you by power. [It's] time for the recording industry to see that reality has changed, and all their lobbying power in the congress, and all their litigating power in the courts, and all their manipulation of the public mind to equate sharing music with theft, cannot stop the growth of a digital environment in which peers have ability to gather and share.”

Godspeed. 

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Because the United States is one of the few jurisdictions where a copyrighted work MUST be registered before it will be entitled to any protection, the 9th Circuit Court of Appeals ruled on June 11, 2008, that Section 412(2) bars an award of infringement for any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work (Derek Andrew, Inc. v. Poof Apparel Corporation (9th Cir. May June11, 2008) (No. 07-35048). This is the first time that the Ninth Circuit has addressed Section 412 in the context of post-registration infringement.

Plaintiff originally sued Poof for copyright infringement and obtained an award of $15,000 for copyright infringement and nearly $300,000 in attorneys fees. Poof Appealed. The Ninth Circuit reversed, holding that the purposes of the registration requirement of the statute is (1) “to provide copyright owners with an incentive to register their copyrights promptly; and (2) to “encourage potential infringers to check the Copyright Office’s database.”

The twist in this particular case is that Poof continued to infringe plaintiff’s copyrights even after plaintiff registered his copyright.

Moral of the story: if you want to use someone else’s content, wait approximately three months after publication to make sure they haven’t registered, then feel free to use it. Whenever possible, target small artists and authors who are unlikely to have registered copyright. You may ultimately have to pay some damages, but you won’t need to worry about those pesky attorneys’ fees and statutory damages.

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