An injunction ordering the destruction of the infringing material is fine.

An injunction sternly demanding, however, that the wrongdoer not break the law again is worse than silly. If the wrongdoer does repeat, the one who’s harmed has a remedy under the substantive law. Why should the judicial branch elevate that subsequent harm into a quasi-criminal act of contempt? Especially when the alleged harm is to a permeable copyright intentionally made so by Congress. An act of copyright infringement is a tort – the second act is a tort and so is the third, etc., ad infinitum. Only our criminal code can define when an infringement is also criminal conduct.

But violating an injunction is contempt of court and even civil contempts authorize courts to incarcerate and fine. But to do so for a second act of infringement? That’s worse than dumb. That co-mingles fundamental liberty interests with civil wrongs and puts the court in a position where it must use too powerful a tool to enforce its order not to infringe again.

The RIAA demands even more, however: an injunction ordering Tenenbaum not “to promote or advertise using the Internet or any online media distribution system to infringe copyrights…” – whatever that means. Does “promote or advertise … to infringe copyrights” mean he can’t talk about how to infringe copyrights? Hmmm. I get it that the RIAA would prefer that he not promote himself as a file sharer martyr but it was the RIAA who crucified him (rightly or wrongly). First Amendment prior restraint jurisprudence permits even the most reprehensible criminals talk in detail about the horrors they forced on innocents. Asking the court to gag Tenenbaum demonstrates just how arrogant and self-righteous the RIAA has become.