Ruling Reached in Nesson Case; Appeal To Follow, Harvard Law Prof Says

A Boston University graduate student charged with illegal file-sharing has been ordered in federal court to pay $675,000 in damages to four large recording companies, marking another victory for the music industry in only the second such case to go to trial.

The jury found that Joel Tenenbaum, 25, willfully infringed on the copyrights held by companies including Sony and Warner Bros and awarded the companies $22,500 per song downloaded. The jurors—instructed to decide only the willfulness of Tenenbaum's actions and the amount of damages to be paid—reached their conclusion in about three hours last Friday.

In a statement, the Recording Industry Association of America, a national trade group that organized litigation against peer-to-peer file-sharing from 2003 to 2008, lauded the outcome of the trial as a "recognition of the impact of illegal downloading" on the music industry.

"We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work," the statement read. "We only wish he had done so sooner rather than lie about his illegal behavior."

Tenenbaum faced an uphill legal battle to avoid paying large damages. After he admitted downloading and distributing the 30 music files at issue in the case, the jury was not asked to rule on his liability for the activities. The issue instead became how much he would have to pay.

Under the 1999 Digital Theft Deterrence and Copyright Damages Improvement Act, plaintiffs are awarded from $750 to $30,000 in statutory damages for each infringement, and up to $150,000 for each case of willful infringement. Pre-trial settlements offered by RIAA-appointed lawyers usually range from $3,000 to $5,000. Before the RIAA's litigation campaign ended last December, about 30,000 file-sharers had paid to settle.

"[The verdict] was not unexpected," said Harvard Law School professor Charles R. Nesson '60, who led Tenenbaum's defense team. "This is what the law requires—though it's obviously irrational and clearly reversible," he added.

Nesson, known for advancing unusual legal arguments, said that the damages awarded would bankrupt Tenenbaum, and that his client would ask Judge Nancy Gertner to reduce the sum to a more "reasonable" level. In the only previous such case to go to trial, Capitol v. Thomas, the plaintiffs were awarded $9,250 per song, an amount raised to $80,000 per song in the re-trial for a total of $1.92 million.

An appeal of Tenenbaum's case will not take place for at least two months, Nesson said.

Tenenbaum's legal team had initially planned to argue that Tenenbaum's actions constituted "fair use" of the copyrighted material, but Gertner rejected the argument early Monday morning before the trial started. The defense then attempted to portray Tenenbaum as a "young child" exploring the boundaries of a digital world, while framing the recording industry's recent struggles as a "coming of age story" that parallels technological advances.

"We are in a world of new media, the free world of cyberspace," Nesson said in his closing statement, "as opposed to the space of bits that a young child has to pay for."

At the same time, the damages that Tenenbaum faced—up to $4.5 million—were disproportionate to the harm caused by his actions, Nesson added. Downloading a song legally via Amazon.com, for instance, costs a user 99 cents, and consequently, Nesson said, the magnitude of possible damages seemed unreasonable in comparison.

Nesson's speech was characterized by an anecdotal account of one of his first experiences with the court system (as a young man, he appealed a ruling for a traffic violation), a concluding allegory about a wise old man and a bird ("the bird is in your hands," he told the jury), and a portion during which he intended to have jurors listen to a song (quashed by Gertner in the interests of time.)

Counsel for the plaintiffs, by contrast, presented a methodical run-through of the facts, bolstered by expert testimony that the files in question had been downloaded on Tenenbaum's computer and that illegal file-sharing had caused a precipitous decline in the revenues of the recording industry.

While wryly acknowledging Nesson's appeal, calling him an "eloquent speaker," RIAA attorney Timothy M. Reynolds argued that the "size and scope" of Tenenbaum's file-sharing constituted a willful violation of copyright laws, referring to him throughout the closing statement as simply "the defendant."

Reynolds emphasized that Tenenbaum never apologized for his actions, contradicted his deposition while testifying, and suggested that others may have been responsible for the music files found on his computer.

"The defendant is a hard-core, habitual, unrepentant offender," Reynolds said. "Just because the defendant likes music doesn't make it okay to steal."

Despite the setback, Nesson denied that the outcome of Tenenbaum's trial presented a significant setback to the effort to change digital copyright laws.

"The recording industry now has to defend the logic of imposing bankrupting damages," Nesson said. "This is only the beginning."

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