Jonathan Wiggs/Globe Staff
Charles Nesson, the flamboyant Harvard Law School professor defending a college student accused of illegally downloading and sharing music online, used an unusual prop in his opening statement today to illustrate why jurors should side with his client.
He held up a rectangular piece of plastic foam wrapped in cellophane and said it represented the compact discs that record companies sold in the millions before digital music become available online. Then he sliced the wrapper with scissors, and hundreds of tiny jigsaw pieces fell on the carpet in front of the jury.
"You have the ability to share, and this physical object" -- the 71-year-old professor paused as he snipped with the scissors -- "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."
Nesson said his client, Joel Tenenbaum, a 25-year-old Boston University graduate student, was "a good kid" who admits using KaZaA, a peer-to-peer network, to share songs online but downloaded only because he loves music, never to make a profit. If the jury finds his client liable, Nesson said in his sometimes-rambling opening, it should impose only minimal damages.
Timothy M. Reynolds, a Boulder, Colo., lawyer representing four major record labels, said that the damages inflicted on the industry by people who download and share music for free is enormous and imperils the livelihoods of workers, ranging from sound engineers to talent scouts.
SONY BMG Music Entertainment, Warner Bros. Records Inc., Arista Records LLC, and UMG Recordings Inc. contend that Tenenbaum downloaded and shared more than 800 songs illegally but are only focusing on 30 songs. The songs were recorded by artists that include Green Day, Aerosmith, Eminem, Linkin Park, and the Ramones.
Reynolds said Tenenbaum, a graduate student in physics, downloaded much of the music at his parents' house in Providence. When the recording industry caught him, the lawyer said, Tenenbaum blamed his friends, his sister, a foster child who had lived with his family, even burglars.
"The defendant knew what he was doing was wrong at each step of the way, but he did it anyway," Reynolds said.
Tenenbaum is one of more than 18,000 recipients of letters from the Recording Industry Association of America in recent years demanding payment for illegal file sharing. Most have settled out of court for $3,000 to $5,000. He is only the second to challenge a lawsuit by the industry in federal court in the country.
If he loses, the financial stakes could be enormous. Under federal law, the jury could award the labels from $750 to $30,000 for each copyright infringement and as much as $150,000 for each willful infringement. That means that Tenenbaum could owe $4.5 million if the jury concludes he willfully infringed the copyrights of the 30 songs.
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