Nesson says judge sank his piracy defense in RIAA v. Tenenbaum


Prof. Charles Nesson ’63

The outcome of the trial was predictable if tragic. An industry dominated by corporate titans, seeking to make an example of an individual who had infringed on their intellectual property, brought suit in federal court with the expectation of settling their claims for a substantial monetary penalty which would deter the public at large. Joel Tenenbaum had done no more than many thousands of other young computer-savvy music listeners by installing and using Napster, but it was his unfortunate fate to be selected as a target of opportunity for his copyright infringement. When his case came before Judge Nancy Gertner in the District of Massachusetts, she suggested that Professor Charles Nesson ’63 consider taking it.  But even a brilliant professor from Harvard Law School couldn’t win against the stacked deck of legal authority favoring the recording industry.

To Nesson, the final judgment at the trial, awarding $675,000 to the Recording Industry Association of America (RIAA), was both disappointing and absurdly excessive. “I got my ass kicked pretty well in this trial.” But Nesson is confident that the long-shot case was a good opportunity to make a stand. “What Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.”

Addressing a room full of HLS students, Nesson explained his motivations and methods in the defense of Tenenbaum for the innocuous downloading of thirty mp3’s.  When the case first came to his attention, Nesson knew that there was little chance of victory on the merits, with the only truly viable strategy at trial being the minimization of damages.

Nonetheless, Nesson pressed forward with a defense on the merits to the validity of the charges, arguing that the behavior asserted by the RIAA as violating the law was a ubiquitous and socially acceptable activity which should not be considered infringement.

Young computer users like Tenenbaum, called “digital natives” by Nesson, grew up in a world where the explosion of music sharing was a widespread cultural phenomenon. “In a way, if you didn’t participate in Napster, you really didn’t know what was happening on the Net,” said Nesson. “The idea that a whole generation was guilty seemed wrong to me.” Indeed, Hilary Rosen, the chairperson of the RIAA, recognized Napster as, “the most efficient method of distributing music ever invented.”

Despite the doubts of colleagues, Nesson believed that the exception to statutory copyright infringement for “fair use” might be applied to Tenenbaum’s case. The doctrine was originally developed to provide freedom for creative production of derivative works, and though Tenenbaum’s use of the music did not have a creative component, Nesson believed that the Supreme Court’s protection of VCR home recording might provide a basis for viewing copyright law as protecting the public interest of consumers, a category which fit Tenenbaum. But precedent was strongly against this theory. Courts had already rejected Napster’s fair use arguments based on preview of music for later purchase as well as’s “space-shifting” argument that the internet could act as a jukebox for owners of licensed CD’s.

In fact, Judge Gertner accepted Nesson’s theory of fair use, but only for the “interregnum” period from Napster’s creation in 1999 until the recording industry began to offer a legal alternative for purchase of its music online. But by 2004, when Tenenbaum downloaded the music in his case, the music industry already provided online access to music. Nesson argued, however, that until 2007, when fully transferrable, unencrypted music was available online, there was no full technological substitute that would rule out a fair use argument.

“The fair use argument then, to a Court, becomes, a policy argument, in effect, of saying that the law shouldn’t put its weight behind an inferior product.  When you have an alternative that is ubiquitous, that the industry has been responsible for making so [because CD’s were not encrypted], if the law enforces copyright based on the encrypted product, which is inferior to the available product [which is unencrypted], then it’s acting in a way which is counter to innovation.”

The rejection of this argument by the trial court left Tenenbaum’s fate in the hands of a jury, but the evidence presented by the RIAA, which made it look like Tenenbaum blamed others and lied, interfered with his effort to appear credible and sympathetic. The RIAA was thus able to convince the jury that his conduct was basically, in Justice Stephen Breyer ’64’s words in the Grokster case, “garden variety theft.”

Upon the entry of judgment, Nesson plans to take the case to the First Circuit on appeal, hoping for a reevaluation of the legal theories presented and an invalidation of the damages as unconstitutionally excessive. But in the meantime, there has been an extended delay in the entry of judgment and an exchange of motions that have led to Judge Gertner taking the matter under advisement.  Nesson believes there may be reversible error due to the exclusion under Rule 408 of certain parts of a settlement letter offered as evidence by Tenenbaum, since that rule is intended to protect the party that makes a settlement offer and the letter should have been admissible, and that Judge Gertner may hold that the jury’s calculation of damages was incorrect and should be reduced to the statutory minimum of $750 for non-willful violation.

He believes now, in retrospect, that he should have treated the case as a criminal case, pleading the Fifth Amendment and demanding a bill of particulars, and that future defendants should treat such cases like criminal trials. But despite the rejection of his theory by the trial court, Nesson believes that statutory damages were never intended by Congress to be imposed against individuals.

Furthermore, he believes that the statutory fair use defense supports Tenenbaum’s case on each of the factors of amount of the work taken, the effect of the market, nature of the work, and nature of the use. Indeed, to Nesson, sharing music has had a net positive effect on the music market by offsetting the harm to large record producers with a huge stimulus to independent music production, and Judge Gertner’s own recognition of the “interregnum” following the advent of Napster makes the policy arguments in the case eminently cognizable to a judge and jury.


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