Lawyer in Tenenbaum music piracy case to seek retrial

Harvard Law professor will push fair-use claims in seeking new trial

The Harvard Law School professor who defended a Boston University doctoral student in a music piracy case plans to seek a new trial.

Charles Nesson, a law professor and the founder of Harvard's Berkman Center for Internet and Society, said he is also filing a separate motion challenging the constitutionality of the $675,000 fine assessed against Joel Tenenbaum and asking that it be reduced to a more reasonable amount. A hearing on the motions is scheduled for Jan. 4.

Nesson plans to argue that Tenenbaum's file-sharing activities occurred before digital music could be purchased legally in MP3 format. He pointed to remarks made by U.S. District Court Judge Nancy Gertner in her decision yesterday that he said supported such an argument. Gertner signed off on a $675,000 fine against Tenenbaum, who was found liable for illegally downloading and sharing 30 copyrighted songs in a lawsuit brought by the Recording Industry Association of America (RIAA), which represents the major music labels.

In her remarks, Gertner noted that individuals "who used new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets," might be able to use a fair-use defense.

In her decision, Gertner wrote that the court might have been willing to hear the "fair use" defense asserted by Nesson had it been presented in a proper manner. Gertner said she had to forbid Nesson from presenting a fair-use defense in the case because the manner in which it was presented to the court was too broad and vague.

If Nesson had tailored his defense to suggest a "modest exemption" to copyright protections, the court would have been willing to entertain it, Gertner noted. As an example of such an exemption, Gertner wrote that individuals who had used new file-sharing networks in the "technological interregnum" before legal paid music downloads were available might be able to rely on a fair-use defense, if they had later started paying for such downloads.

The fair-use doctrine allows for the use of copyrighted material without permission from the rights holders in certain limited circumstances.

"Her opinion on their being an interregnum between when Napster came online and the time the industry finally responded" with legal MP3 music downloads is interesting, Nesson said in an interview with Computerworld. The comments suggest that Gertner recognizes that many Napster users might have had a legitimate fair use, Nesson said. "She has established the foundation by recognizing this interregnum period. The key question is, When did that period come to an end?" he said.

Nesson said he will also use Gertner's refusal to permit the fair-use defense in the case and other "major evidentiary errors" as a basis for seeking a new trial. One example of such an error was the judge's refusal to allow the jury to see the entire contents of a letter Tenenbaum had written to the RIAA offering it $500 by way of a settlement, Nesson said. Her refusal resulted in the jury walking away with a false impression of Tenenbaum's commitment to settling the case, Nesson claimed.

He said he will also argue that the copyright statutes used in the case were not meant to be used against individuals, but against commercial enterprises that break copyright laws. "We will be asserting the unconstitutionality of applying these bankrupting damages to individual persons like Joel," Nesson said.

How successful such arguments are likely to be remains to be seen. Nesson's tactics in the case have previously drawn fire from other legal experts. Some had predicted that his assertion of a fair-use defense would fail, well before Gertner threw it out. Others questioned his decision to challenge the constitutionality of the statutes under which Tenenbaum was sued.

Gertner, in her decision yesterday, criticized Nesson's behavior and called his use of the fair-use defense an "afterthought" that he came up with "literally on the eve of trial."

"Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal," Gertner wrote in explaining some of the reasoning behind her decision to forbid the fair-use defense in the Tenenbaum case.

Nesson, however, brushed aside the judge's criticism and maintained that it was she who had gotten it wrong. "I was sorry she did not respond to our fair-use defense. She had a considerable amount of trouble rejecting it," he said.

Gertner in her decision also said she was concerned with "astronomical penalties" available to music companies under copyright laws. She called upon Congress to amend copyright statutes to reflect the realities of file-sharing among students.

Copyright © 2009 IDG Communications, Inc.

7 inconvenient truths about the hybrid work trend
Shop Tech Products at Amazon