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Editorial: Drop the Tenenbaum case

There is a strange transition occurring in the IP world right now. Lawyers can increasingly be heard at conferences and cocktail receptions talking about how important it is to pick one's battles, and warning peers not to use IP law too aggressively. Engage, explain, let it go if possible: it sounds more like the mantra of a yogi than an IP lawyer, and yet we hear it more and more each day in trade mark and copyright circles. In an age when consumers have just as much ability to generate negative press as industry critics and seasoned journalists, IP lawyers are becoming ever more aware of how closely their actions and policies are tied to PR and brand image. And so the recording industry's continued belligerence is becoming somewhat surprising, even to the IP community.

Joel Tenenbaum, for example, has been ordered to pay $675,000 for illegally downloading 30 songs when he was in college. The jury that delivered the verdict could have found him liable for up to $4.5 million in damages. The companies that brought the suit are not backing down, despite the Recording Industry Association of America (RIAA) having officially halted its campaign targeting individual file sharers four years ago. And now that the Supreme Court has rejected Tenenbaum's request to appeal against the industry group, the case is adding fuel to the anti-intellectual property fire.

The harsh reality about the Tenenbaum case is that thousands of 20 and 30-somethings across the US hold their breath when they hear about such suits, wondering how they managed to fly under the radar all those years. According to Tenenbaum's Supreme Court petition, in 2008 the average American teenager had 800 illegally downloaded songs on his or her iPod. When it could just as easily have been you, it is hard to be convinced this level of punishment is justified. After all, didn't the last generation copy vinyl records onto cassette tapes for friends and record songs off the radio to their hearts' content? If they'd had the technology to get Lennon and Dylan free at their fingertips, wouldn't they have done it too? And might Lennon and Dylan have wanted it that way?

Tenenbaum did download and share songs illegally, and piracy is a problem. But total North American music industry revenues were still $26.5 billion in 2011. The music industry became used to astronomical profits during the CD era, but the digital age has perhaps forced them to become a bit more realistic. And at a time when IP owners are already fighting an up-hill battle to explain the importance of IP enforcement, it is arguably in the best interests of both the music and other copyright-dependent industries to avoid reviving the debate over individual downloaders, and just let this one go.

Eileen McDermott

Americas editor

Managing IP

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