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Record labels battle BU grad student in federal court

E-mail|Link|Comments () July 27, 2009 03:02 PM

By Jonathan Saltzman, Globe Staff

Four major record labels are in federal court today battling a Boston University graduate student accused of illegally downloading and sharing music in only the second such case in the nation to go to trial.

Sony BMG Music Entertainment, Warner Bros. Records Inc., Arista Records LLC, and UMG Recordings Inc. have sued Joel Tenenbaum, a 25-year-old graduate student in physics, in US District Court in Boston for using a peer-to-peer network to infringe copyrights on 30 songs they own.

Lawyers for both sides are picking a jury and are scheduled to make opening statements this afternoon.

The Recording Industry Association of America, which is coordinating the case against Tenenbaum, has written more than 18,000 individuals and families in recent years to demand payment for illegal file sharing. Most recipients have settled out of court for $3,000 to $5,000. Tenenbaum is only the second to take the matter to trial in what many legal specialists describe as a quixotic campaign.

The only file-sharing defendant who went to trial was Jammie Thomas-Rasset, of Minnesota, who fought similar allegations in the federal courts in that state. Last month, a jury found for the record labels and awarded $80,000 per song, or a total of $1.92 million.

This Boston trial is expected to be lively, if for no other reason than Tenenbaum's lawyer. He is being represented by Charles Nesson, widely regarded as one of the most brilliant, if eccentric, professors at Harvard Law School.

The white-haired 70-year-old professor -- a champion of the Internet whose campus office sign proclaims him `"Eon, dean of cyberpace" -- already nettled District Court Judge Nancy Gertner this morning when he asked a prospective juror whether the woman would be offended if she learned that he smoked marijuana.

The young woman said no. But after she left the court room where prospective jurors are being interviewed, Gertner chided Nesson for revealing "irrelevant" information about himself and warned him not to do it again. Nesson did not discuss his marijuana smoking again, but he did ask jurors whether they were aware of the recent legalization of marijuana in Massachusetts, evidently to probe their views on changing social mores.

Gertner issued a major blow to the defense this morning when she ruled in favor of the record labels that Tenenbaum could not rely on "fair use" as a legal defense for his peer-to-peer sharing of songs online. Fair use is a defense in which a defendant acknowledges sharing copyrighted material but says it was justified.

Ben Sheffner, a Los Angeles copyright lawyer who has been following the case closely on his blog Copyrights & Campaigns and is blogging from the courtroom, said Gertner's ruling means that Tenenbaum "has no defense."

The only thing Tenenbaum can argue, he said, is that his action did not cause significant harm to the plaintiffs, which might help limit damages if a jury rules in favor of the recording industry. Sheffner said, however, that Tenenbaum and his lawyer might be angling for a public relations victory if a jury awards the recording industry a big award in its battle against a college student.

The trial is expected to take a week.