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In 1997, Charles Nesson and Jonathan Zittrain founded the Berkman Center for Internet & Society. A research center focusing on legal study of the Internet, notable fellows have included Jimbo Wales, Larry Lessig, John Perry Barlow, and Yochai Benkler. The Center has recently transcended academia to defending an admitted filesharer in the ongoing war against music piracy.On July 29, Charles Nesson gave his opening statement in the copyright infringement suit involving Boston University student Joel Tenenbaum. Mr. Tenenbaum admits to using Kazaa, a peer-to-peer filesharing service used primarily to share mp3s of copyrighted music on a commercial scale. His argument seems to be, however, that he did so for the love of the music, not to make money. Whether that has any relevance whatsoever to the law is another question entirely.
Of the many lawsuits the RIAA filed against peer-to-peer filesharers, this is only the second to go to a jury trial. The first, a suit against Jammie Thomas-Rasset in federal court in Minnesota, resulted in a $1.92 million verdict for copyright infringement. Most alleged filesharers threatened by the RIAA opted to settle for a few thousand dollars instead. In this suit, Mr. Tenenbaum has opted not to settle, tempting fate like Ms. Thomas-Rasset and a potential million dollar judgment.
Perhaps thinking that the odds might be against him, Professor Nesson engaged in some theatrics in his July 29 opening statement. The Boston Globe reports that the seventy-year-old Harvard professor dropped hundreds of puzzle pieces on the floor before a jury in the Moakley Federal Courthouse today, explaining, “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.’’ The record companies went for a more orthodox approach, explaining that “[t]he defendant knew what he was doing was wrong at each step of the way, but he did it anyway.” Sooner or later, however, these Boston jurors will simply have to decide whether Mr. Tenenbaum violated federal law.
If Mr. Tenenbaum is found guilty of wilful infringement, he could face $150,000 per song shared. That amounts to a cool $4.5 million. Fair? For an interesting take, see Howard Knopf’s fantastic Excess Copyright blog. And, of course, feel free to discuss in the comments.
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