RIAA v. Tenenbaum: A defense made of styrofoam

File-swapper Joel Tenenbaum fought the law, and the law won. Now a jury must decide how much he owes the RIAA. Cringe sees little justice in any of this

Another file-swapping trial, another victory for the record companies. I love rooting for the underdog as much as anybody, but this is starting to look like a rout.

As I write this, a jury in Rhode Island is deciding how many millions in damages to award to the record companies in the Joel Tenenbaum file-sharing trial.

[ See more file-swapping funny business on InfoWorld: "Don't stop believing in the RIAA's capacity for evil" | Stay up to date on Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

This case was supposed pit Harvard's crack legal team against the record companies, with the prime objective being to challenge the Constitutionality of the RIAA's police-state tactics. Unfortunately, it was the legal arguments that cracked when Judge Nancy Gertner threw out Team Tenenbaum's argument that listening to music obtained via Kazaa constituted "fair use."

After that, their case turned to styrofoam -- literally. Defense attorney Charles Neeson took a piece of styrofoam and crumpled it to bits in front of the jury to demonstrate what happens to "albums" when they get distributed online. (And if that didn't work, he was going to try balloon animals. Just kidding, I think.)

Of course, it also doesn't help your case when the defendant is a complete knob. (See: Thomas-Rasset, Jammie.)

On the stand, Tenenbaum cheerfully admitted to using Kazaa to download the 30 songs he's being sued about, and hundreds more. That was enough for Judge Gertner, who reviewed the transcript last night and this morning declared him "guilty, guilty, guilty."

It's a bit like someone on trial for murder who says, "Yep, I shot that guy, it was me, eeyuck eeyuck." Unless insanity or self-defense are acceptable arguments in a copyright case, that's probably not the smartest strategy for victory.

The only thing that makes sense to me (caveats: I am not an attorney, and usually very little makes sense to me) is that Team Tenenbaum doesn't care about this verdict, and it's plotting to win the appeal on larger Constitutional grounds -- though probably not fair use -- in order to establish precedent. In other words, they wanted to lose. Because if they had won, the record companies would have to appeal to move the case forward. And the RIAA has indicated it's finally done suing the world to make up for its own naked greed and stupidity. (I'm editorializing just a bit here.)

The other option: Nesson is trying to make a point about damages. Right now, Tenenbaum et al stand to lose as much as $4.5 million, due to the largesse of the U.S. Congress, which created laws with penalties of up to $150,000 for each infringement.

As anyone who's not connected to the record companies will tell you, that's friggin' nuts. There is no way an individual costs the record companies $150,000 by uploading or downloading a song. And if that amount is purely meant as a disincentive, it clearly isn't working, as the record companies themselves will tell you. File swapping is still the hot craze on campus; all the kids are doing it.

But relying on a jury to make that decision is beyond risky. Look what happened to Jammie Thomas-Rasset. Found liable once for around $9,000 per song, she appealed, was declared guilty again, and is now on the hook for $80,000 a song. She's got "Bills, Bills, Bills" and no way to pay them.

The jury selection selection process in the Tenenbaum case was "tortured" by even the judge's standards. The record companies did their job, weeding out jurors who might be sympathetic to file-swapping college students and/or know much about tech. Nesson, by contrast, wanted to know if jurors would be offended by the black turtleneck he wore in the courtroom (apparently he's a big Steve Jobs fan) or his admission to smoking marijuana in the past. No, I'm not making that up. (Though I suspect that "by the past," he meant "in the past five minutes, in the bathroom down the hall.")

Writing all this, I'm starting to wonder if Nesson is actually licensed to practice law or just a wacky impersonator, like Leonardo DiCaprio in "Catch Me If You Can." It's certainly entertaining from the perspective of someone who isn't on the hook for $4.5 million, but I have to wonder how Team Tenenbaum feels about all this.

As I've said too many times before, copyright law is broken. It has shifted from its original intent -- allowing content creators a fair return for their intellectual endeavors -- and moved into the field of revenue assurance for copyright holders, who are usually not the people who created the content in the first place. If the Tenenbaum trial doesn't change this (and it sure doesn't look likely at this point), something else must.

[UPDATE: After this post was published, the jury settled on damages of $675,000, or $22,500 per song. How people come up with these figures is beyond me. Tenenbaum supporters are asking sympathetic souls to donate 99 cents (or more) to help defray the costs of the judgement. You'll find more details at the JoelFightsBack site.]

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Does the Tenenbaum case change your mind about file swapping and copyrights? Post your thoughts below or e-mail me: cringe@infoworld.com.

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