Nesson Case Continues, Dealt Blow by Judge

Defendant Joel Tenenbaum was dealt a blow in the second-ever jury trial on file-sharing on Monday when Judge Nancy Gertner ruled against the unusual strategy his legal team had planned to use.

Tenenbaum, a 25-year-old graduate student at Boston University, stands accused of illegally downloading 30 music files using Kazaa. Under the 1999 Digital Theft Deterrence Act, he faces maximum penalties of $150,000 damages per file, or $4.5 million total, if found guilty.

Led by Harvard Law School professor Charles R. Nesson '60, Tenenbaum's lawyers had said they would argue that downloading songs for non-commercial purposes constituted "fair use" of copyrighted material. If so, the plaintiffs--several large recording companies including Sony and Warner Bros--would not be justified in claiming millions in damages.

Such a defense, if successful, would have also introduced a novel meaning of copyright law as it applies to digital media. Nesson's argument, Gertner said, would have legalized any downloading of copyrighted material so long as it was used for a person's private enjoyment.

Though she dismissed Tenenbaum's defense, calling it "so broad that it would swallow the copyright protections that Congress has created," Gertner acknowledged situations in which downloading copyrighted files might fall under fair use.

For instance, Gertner said, an individual who deleted the files after "sampling" them or created them from previously purchased CDs to free up physical storage space might be able to argue fair use. And a defendant who shared copyrighted files during a period of time before there existed clear file-sharing laws and legal, fee-based sources of online music would present a "strong case" for fair use.

Debbie Rosenbaum, a joint Law School and Business School student who is participating in Tenenbaum's defense, said that she and Nesson were disappointed that they would not be able to frame the case in the terms of "fair use."

"There genuinely is some merit in the argument," Rosenbaum said, even while acknowledging that others may have found it "alternative" and "non-traditional."

Since Gertner has closed off this avenue of argument, a verdict of not guilty is "unlikely," she said, given that Tenenbaum has all but admitted to the act of downloading copyrighted material. Instead, their goal will be to convince the jury to minimize any damages Tenenbaum must pay.

"The plan moving forward is mostly to focus on the policy arguments—that what the music industry is doing to individuals is unfair," Rosenbaum said.

In previous court filings related to Tenenbaum's case, Nesson has argued that the Digital Theft Deterrence Act is essentially a criminal statute, and consequently the large damages awarded—significantly more than the cost of legally downloading a song—violate the 5th and 8th Amendments.

Gertner criticized the size of the damages sought by the recording industry last fall in a separate case.

"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers...that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it," she said to the plaintiff at the time.

Most of the 30,000 defendants charged with illegal downloading during a five-year litigation campaign by the recording industry settle for between $3,000 and $12,000. In the only other file-sharing case to go to trial, the defendant was ordered to pay $1.92 million in damages for downloading 24 songs, or $80,000 per song.

Tenenbaum is expected to testify in his own defense tomorrow or Thursday at the United States District Court for the District of Massachusetts, and the presentations from both plaintiff and defense are on track to end by Friday.

-Staff writer Athena Y. Jiang can be reached at ajiang@fas.harvard.edu.