You are previewing premium content. RIAA v. Tenenbaum: A defense made of styrofoam
File-swapper fought the law, and the law won. Now a jury must decide how much he owes the RIAA.
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 to 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.
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