Wednesday 29 July 2009

Tenenbaum filesharing trial opens in Boston

It’s not being streamed live but the Joel Tenenbaum file sharing case in the USA is certainly making the headlines. Tenenbaum, the 25 year old college student accused of illegally downloading and sharing music online, is in the public eye not least because of the ‘flamboyant’ (elsewhere described as ‘rambling’) presence of Harvard law professor Charles Nesson who opened the defence by holding up a rectangular piece of plastic foam wrapped in cellophane which he said represented the compact discs that record companies sold before digital music became available online. He then sliced open the wrapper with scissors and hundreds of tiny jigsaw pieces fell in a pile in front of the jury in US District Court in Boston with Nessom saying “You have the ability to share, and this physical object’’. The 70-year-old professor then paused and snipped open the foam commenting “suddenly broke into a million bits. Here it is. Bits. . . . Can you hold a bit in your hand? You can’t. . . . And suddenly you have songs being shared by millions of kids around the world.’’

Tenenbaum no longer denies that he shared music illegally but Nesson said his client was “a good kid’’ who admits using file swapping network Kazaa to share songs online but says he did it only because of his he love of music, not to make a profit saying "He was a kid who did what kids do and loved technology and loved music” adding “the Internet was not Joel's fault …. the internet sweeps in like the way the automobile swept into the buggy industry".

Timothy M. Reynolds, who represents four major record labels which are plaintiffs in the trial, said damages to the industry from free file-sharing are enormous and imperil “real people,’’ ranging from sound engineers to talent scouts saying “The defendant knew what he was doing was wrong at each step of the way, but he did it anyway,’’ said Reynolds, who added that Tenenbaum continued sharing music files on other peer-to-peer networks even after the recording industry filed suit. He also pointed out that Tenenbaum didn't initially admit he was the person using Kazaa at his IP address alleging that 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".

Wade Leak, a senior vice president at Sony and deputy general counsel, testified that illegal file-sharing has cost record companies profits and made it harder to nurture new artists, citing Bruce Springsteen as one performer who became a star only after releasing a couple of modestly successful records and Reynolds added that "The exact amount of harm is incapable of exact proof. But make no mistake about it: the defendant's activities caused significant harm". Nesson has said that the record industry is simply making an example of Tenenbaum’s activities - which are common practice amongst youth across the US saying "Everyone could download [songs] for free … 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".

The final witness of the day was Tenenbaum's father, Dr Arthur Tenenbaum, who was called by the RIAA to testify and who told the court that he had 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 trail judge, Nancy Gertner, has already ruled out any form of ‘fair use’ defence and with the admission of guilt it is difficult to see what Nesson will achieve beyond perhaps minimising damages - but with a jury, who knows! That said, in the recent Jammie Thomas-Rasset trial the jury awarded dmages of $1.92 million. The case continues, with Judge Gertner saying she would like it all wrapped up by Friday.

Photo: Professor Charles Nesson in his trademark turtle neck top

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