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“The internet was not Joel’s fault”: Tenenbaum case update
By CMU Editorial | Published on Wednesday 29 July 2009
I’m pretty sure at one point it there were questions as to whether Harvard law prof Charles Nesson would actually be able to represent file-sharing student Joel Tenenbaum in the Boston court in his fight against the Recording Industry Association Of America’s last big P2P lawsuit, because he wasn’t licensed as a lawyer in Massachusetts. Or perhaps I dreamt that. Or perhaps they let him lead the P2P defendant’s case in court anyway because they knew he’d be entertaining.
The outspoken legal expert certainly pulled no punches during day one of the Tenenbaum trial yesterday, telling the court, in no uncertain terms, that while his client may have shared music via P2P on the internet without the content owner’s permission, and while technically speaking that permission might be required, it is ridiculous to hold the defendant liable for copyright crimes for simply doing what millions of other people were doing every day all over the world.
As expected, Nesson isn’t going to fight this case with evidential or procedural arguments – even though both have had some success in past P2P lawsuits – but rather by taking the approach “if the law says you can sue a young music fan for doing what every young music fan does, then the law’s an ass”. The success of Tenenbaum’s case will partly depend on whether Judge Nancy Gertner will tolerate what is basically a academic legal debate to take place in her court room.
With the jury in place by end of play Monday, the case against Tenenbaum kicked off proper yesterday. As previously reported, the student, now 25, was one of the thousands of American file-sharers who were sued by the Recording Industry Association Of America during the trade body’s self-harming anti-P2P litigation campaign, a campaign which was ended late last year having achieved ever so slightly less than nothing.
Whereas most of those threatened with legal action quickly agreed to an out of court settlement with the record industry (pay a few grand in damages and promise never to file-share again), Tenenbaum decided to fight the action against him. Though, unlike some others who decided to fight an RIAA legal action (Patricia Santangelo in particular), he’s not doing it because he claims he was unaware his internet connection was being used for file-sharing. Although he did initially deny sharing music via P2P, he subsequently fessed up in a deposition. Rather, he is fighting the RIAA because he thinks it is just wrong to be sued for doing something which – to him – is just a normal way to access music used by everyone. This viewpoint is shared by Nesson, hence his agreement to work on the case.
The record industry kicked the proceedings off in the Boston court yesterday, stating the facts as they stand. Speaking for the RIAA, Tim Reynolds said that Tenenbaum had downloaded and distributed thousands of songs, owned by major record companies, without paying to do so. And he continued to file-share, Reynolds added, even after he was sued for his actions. According to Ars Technica the lawyer told the jury: “We are here to ask you to hold the defendant responsible for his actions. File-sharing isn’t like sharing that we teach our children. This isn’t sharing with your friends”.
Reynolds talked the court through data collated by net monitors MediaSentry, who tracked Tenenbaum’s activities on his Kazaa account, though noted that the labels’ evidence of the defendant’s file sharing, while available, was not so important because the student had admitted he had used the P2P network to access and share unlicensed music.
Though, interestingly, the legal man added that Tenenbaum didn’t initially admit he was the person using Kazaa at the IP address 68.227.185.38. Possibly in a bid to counter any natural sympathy among the jury for the little guy taking on the big bad record industry, Reynolds alleged the student “tried to blame others for his conduct – he didn’t take responsibility” and initially tried to pin blame on his friends, his sisters, a foster child living with his family and even a “burglar”. Damn those burglars who break into your house and quickly log on to Kazaa and give away your MP3 collection.
Quickly moving on to counter the argument P2P file-sharing is a victimless crime, Reynolds continued: “The exact amount of harm is incapable of exact proof. But make no mistake about it: the defendant’s activities caused significant harm”. He talked about how the labels’ endured “significant lost sales” as a result of piracy, reducing those companies’ ability to invest in and develop new artists. Reynolds later wheeled out Sony Music’s Deputy General Counsel Wade Leak to explain how record labels work and to big up a record company’s role in funding and nurturing new talent. Leak added that Sony Music’s work force had halved in the last decade, and blamed a chunk of that decline on the file-sharing boom.
None of that meant bull to Charlie though. “Everyone could download [songs] for free”, he observed, according to Ars Technica. “And millions and millions did. Joel was one of those millions. In his way he’s like every other kid. There’s nothing that distinctive about Joel”. Nesson reckons that the RIAA is trying to punish the digital generation simply for embracing the potential of the internet, adding “they listen to music with the technology available, and enjoy it with the technology available. The internet was not Joel’s fault. Joel did not make the internet”.
Expanding that viewpoint, Nesson added that the internet moved the goal posts so much, that just because the record companies did eventually start offering legit digital music services – iTunes etc – that is still no reason to punish those who continue to access music for free via file-sharing. His message for the record companies: “If you’re in the desert and it starts to rain, you need a new business”.
While Gertner seemed happy to allow Nesson to fill his opening address with as much legal opinion as facts relating to the case, she did have to rein the legal man in once he started questioning aforementioned Sony man Leak. Whenever his questions verged off topic and, arguably, into legal debate, RIAA attorney Matthew Oppenheim was quick to raise objections, most of which were sustained by the judge – one before Oppenheim had even had a chance to speak! When Nesson responded to one sustained objection by trying to explain to the judge what he was trying to say she quickly responded: “You’re not supposed to be saying anything. You’re supposed to be asking questions”.
Away from the legal debate, plaintiffs ran through some of the other people Tenenbaum originally accused of using his PC to file-share, getting one friend in court to deny he’d used the student’s computer for P2P activity, and reading depositions from his two sisters making similar denials. Given the defendant had subsequently admitted his file-sharing I’m not too sure why they bothered, except, perhaps, to reinforce to the jury Tenenbaum’s past alleged lies.
The final witness of the day was Tenenbaum’s father, Dr Arthur Tenenbaum, called by the RIAA to testify. Not really helping his son’s case too much, he said Joel had once shown him how to use Kazaa. Not only that, but he recalled how he once called his son at college, in 2002, to warn him he may be sued if he continued to use the P2P client. He told the court his son responded: “You only get sued if you do it a lot”.
The case continues. The plaintiffs are expected to finish presenting their case today, with the defence possibly taking over as soon as this afternoon. Gertner has said she’d like it all wrapped up by Friday.
