A champion of music downloads loses in court

As co-founder of the Berkman Centre for Internet and Society at the Harvard Law School, Nesson is renowned for his early interest in bridging technology, law and culture, and his ability to inspire generations of students to see the internet as a force for positive change, not just cables and computers.

But when Nesson, 70, took on the recording industry in an eagerly anticipated civil case in Boston over sharing music online, the champion stumbled. On July 31, a jury handed down an eye-popping $6,75,000 judgment against Joel Tenenbaum, a Boston University graduate student who was defended by Nesson. Tenenbaum’s offence was downloading and sharing 30 songs.

It was a stinging defeat for Nesson, and to many in the legal community, it seemed to be a moment when an eccentric scholar’s devotion to a soaring vision blinded him to the practical realities of winning a legal case.

Taking on a lawsuit that his own allies warned was ill-advised, Nesson acted in ways that many observers found bizarre and even harmful to the case.
But in an interview, Nesson sounded a nearly evangelical tone, saying the case presented an opportunity to take on the recording industry’s “assault on what I think of as the digital-native generation” over the industry’s own failure to adapt to changing technologies.

While artists deserve to be paid, he said, the solution is not to threaten and punish those who love music through a copyright regime that “produces absurd results”.
In 2004, the Recording Industry Association of America contacted Tenenbaum, 25, who studies physics, and threatened to sue him over songs he had downloaded and shared without paying. Nearly all of the thousands of people confronted by the industry settle for a few thousand dollars, but Tenenbaum chose to fight.

Nesson took on Tenenbaum as a client without pay last year at the encouragement of Judge Nancy Gertner of US District Court, who presided over the case and was uncomfortable with what she has called the “huge imbalance” between industry lawyers and the individuals they have sued.

The crucial blow came on the stand, when Nesson encouraged Tenenbaum to admit freely that he had downloaded and shared songs, after having denied it in depositions, “because it’s the truth,” Nesson said, stripping the case to the core issue of the law’s unfairness.

Gertner essentially declared the case over, directing a verdict against Tenenbaum and leaving the jury to decide only the penalty.

The $6,75,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.
For his part, Tenenbaum said he felt Nesson did an “absolutely brilliant” job in a difficult case, and got a far smaller penalty than the maximum of $4.5 million. But, he added, “this is a bankrupting judgment, even if it’s reduced to $2,00,000 or increased to $2 million.”
These days, Tenenbaum said, he buys his music on iTunes.

Nesson said he was counting on winning on appeal, and was preparing for a hearing to ask for a reduced penalty.

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