O Tenenbaum!

BU grad student Joel Tenenbaum's civil trial for music sharing is scheduled to go to the jury tomorrow, and copyright attorney Ben Sheffner is doing a great job of writing it up day by day for ars technica. (Start here.) Sheffner adds some thoughts at his own Copyrights & Campaigns.

The defense is being run by Harvard Law School's Berkman Center (ars technica also explained how this happened in a piece last February -- see "How Harvard Law threw down the gauntlet to the RIAA.")

The defense strategy is a bit murky. There were some claims that maybe someone else had used Tenenbaum's computer, but these did not stand up. Then there was an attempt to argue that P2P downloading is fair use, but the judge threw out this claim.

Tenenbaum has now admitted to infringment, and the defense seems to be asking for the jury to nullify the law, either by finding no liability nonetheless, or by assessing only token damages instead of the statutory damages of $150,000 per infringement for the 30 songs at issue in the trial.

This is a high-risk strategy, to put it mildly. The RIAA has these infringement cases organized like a production line, with high quality computer and economic experts. The industry has also learned that its biggest vulnerability is the charge that it was indifferent to using the Internet as a distribution channel, so:

After Tenenbaum left the stand in the early afternoon, plaintiffs called Ron Wilcox, an attorney and long-time digital music executive now at Warner Music Group, who guided the jurors through the industry’s efforts to sell music on the Internet, from the early days of MusicNet and Pressplay, through iTunes, and to what he sees as an all-digital future.

“Our total focus and attention is on” digital distribution, said Wilcox, who was called to counter the defense’s suggestion that Tenenbaum’s use of peer-to-peer was justified by the labels’ alleged failure to provide legal alternatives.

The defense has no economic expert at all, and seems to be relying on the idea that it is not fair to hold one P2P downloader, out of a multitude, liable. Tenenbaum could have settled early for about $5K, and his rejection of that deal is not, at the moment, looking too good.  

To really overdose on the case, go to Law Pundit, as well.

Comments

[Ben Sheffner]

James --

Thanks for the kind words. The trial has been a lot of fun to cover.

One minor correction: though Nesson co-founded, and remains affiliated with, the Berkman Center at Harvard Law School, Berkman is actually not involved in the Tenenbaum case: http://www.scribd.com/doc/16754772/Nesson-Response-to-June-16-Order I suspect there's a very interesting back-story to that.

Best,

Ben Sheffner