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Trial to begin in music copyright case

BU student faces major record labels

By Jonathan Saltzman
Globe Staff / July 28, 2009

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Four major record labels who sued a Boston University graduate student for illegally downloading and sharing music online plan to begin making their case today before a federal jury in what is only the second such dispute in the nation to go to trial.

Lawyers for the record labels and for Joel Tenenbaum, 25, were scheduled to make opening arguments yesterday, but they were delayed until this morning. It took longer than expected to pick a jury in US District Court, in part because several prospective jurors were disqualified after conceding they had downloaded music without paying for it.

“I’m not sure I can be [unbiased] because, like I said, I could be sitting in that seat myself,’’ said a balding, goateed Aerosmith fan at a conference table with US District Judge Nancy Gertner, Tenenbaum, and lawyers interviewing prospective jurors.

SONY BMG Music Entertainment, Warner Bros. Records Inc., Arista Records LLC, and UMG Recordings Inc. have sued Tenenbaum for using KaZaA, a peer-to-peer network, to infringe copyrights on 30 songs they own. The record companies say he actually downloaded more than 800 songs.

The graduate student in physics, who most recently lived in Providence, is one of more than 18,000 recipients of letters from the Recording Industry Association of America demanding payment for illegal file sharing. Most have settled out of court for $3,000 to $5,000. The association recently stopped filing new suits after its practice proved a public-relations nightmare.

The only other defendant to go to trial was Jammie Thomas-Rasset of Minnesota, who faced similar allegations of file sharing. Last month, a federal jury in Minnesota sided with the record labels and awarded $80,000 per song, or a total of $1.92 million.

Yesterday, Tenenbaum acknowledged in the courthouse hallway that few facts in his case are in dispute and that the jury will probably side with the record labels if they follow Gertner’s instructions on copyright law.

He is fighting, he said, because the labels kept increasing their demands even after he agreed to settle. At one point, he offered $3,000, but the recording industry wanted $4,000. He said he later offered $5,250, but the companies demanded $10,000. “This is part of their strategy,’’ he said. “If you even think you have a right to challenge them, they’ll hike up the fee.’’

Cara Duckworth, a recording industry spokeswoman at the courthouse, said that the recording companies would have much preferred to settle out of court.

“This is an individual who has admitted to egregious peer-to-peer use, and instead of accepting responsibility for his actions and settling in a reasonable manner, he’s chosen to wage a protracted legal battle,’’ said Duckworth.

If Tenenbaum loses, the financial stakes could be enormous, according to 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.

Under federal law, Sheffner said, the jury could award the record 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.

The 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 professor - a champion of the Internet whose campus office sign proclaims him, “Eon, dean of cyberpace’’ - nettled Gertner yesterday when he asked a prospective juror whether the woman would be offended if she learned he had smoked marijuana.

Gertner later chided Nesson for revealing irrelevant information about himself and warned him not to do it again.

Nesson did not discuss his own marijuana puffing again, but he did ask jurors whether they were aware of the recent decriminalization of marijuana possession in the Commonwealth, evidently attempting to probe their views on evolving social mores.

Saltzman can be reached at jsaltzman@globe.com.