Lessons for Canada from Tenenbaum Trial

We may be about to see some strange theatrics unfold in Boston, where Joel Tenenbaum is on trial for allegedly downloading and sharing 30 songs.

It seems that Tenenbaum's counsel, Prof. Charles “Charlie” Nesson “missed” the fact that Joel could be on the hook for 30, and not just seven songs. That could mean a lot of money to Joel.

It seems also that Prof. Nesson only thought a few days ago of using Prof. Felix Oberholzer, also of Harvard, as an expert witness. Oberholzer is co-author of a very famous study on downloading that concludes that “Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.”

Oberholzer might have been a very useful witness on the highly speculative and remote fair use defence, since he could presumably give expert evidence that the overall effect on the market of downloading and sharing is “is statistically indistinguishable from zero.”

This would seem to have been relevant because “the effect of the use upon the potential market for or value of the copyrighted work” is one of the four basic fair use factors under US law.

In any event, Judge Gertner has refused to allow Oberholzer as an expert because the deadline for putting him forward had long since passed. This morning, at 1:37 AM, she ruled that the fair use defence was not available- in part because of lack of evidence as to why it should be available in this instance. In Judge Gertner's words:

The only fair use factor on which the Defendant raises a serious factual challenge is the effect of his file-sharing on the potential market for or value of the copyrighted works, see 17 U.S.C. 107(4), in which he argues that file-sharing has not diminished the record companies' revenues nor curtailed overall artistic creation. But here again, Tenenbaum has put no facts into evidence on which the Court could rely; his opposition briefs are not accompanied by any affidavit, expert report, deposition testimony, or other evidence of the kind described by Rule 56(e)

See Ben Sheffner's report, including Judge Gertner's early morning ruling.

One of the controversies surrounding Joel's defense has been the very public discussion of whether the fair use defense could/should/would fly. Several very famous academics, including Lessig, Fisher, and Seltzer have told Prof. Nesson that it would not work. So, Judge Gertner's ruling comes as no surprise - but the lack of any evidence clearly didn't help.

John Palfery, another very bright Harvard person, has also been nixed as an expert because of lack of relevance of his proposed testimony on “digital natives.”

It seems that Tenenbaum has only about three witnesses, including himself and his mother. It seems that there will be no “I didn't do it” defence, or no “innocent infringement” defence to get the damages down to $200 per song on the really remote argument that he “had no reason to believe that his or her acts constituted an infringement of copyright.”

So, unless the Prof. Nesson can pull a rabbit out the hat on cross examination, things don't look too good for Joel.

At a minimum of $750 per song, the minimum damages - assuming that infringement is found for 30 songs - would be $22,500 which is quite a hit for anyone for this type of common place activity and certainly for a college student.

Can Prof. Nesson establish that there was no distribution, either as a matter of fact or of law? Can he impeach the type of Media Sentry evidence that was so well dealt with in Canada in the BMG case? Will a constitutional argument be the “deus ex machina” needed to rescue Joel? Will there be enough evidence on the record to sustain such an argument?

It seems that Prof. Nesson will be wearing a turtle neck in court for this trial and was asking potential jurors about their attitudes re pot decriminalization, according to BenSheffner's useful tweets.

While this case is bizarre in many ways, it cannot be dismissed as an "outlier". If Tenenbaum loses and the award is substantial, the public will remember that he was defended by Team Harvard. The public will not know the rather unusual nature of the defence that took place.

BTW, I'm pleased to see that Ben Sheffner - who is quite an expert on this case, albeit from an RIAA point of view - agrees with my earlier take:

• If Joel somehow wins, the RIAA has a big problem.
• If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.
• If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.
• If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

The take away message for Canadians here is that statutory minimum damages should NOT be available against individuals for ANY copyright infringements that involve private non-commercial acts or against any other party where there is a bona fide basis to believe that the activity is fair dealing. In all statutory damages cases, a Judge should have the ability to remit such damages down to zero in order to avoid draconian remedies that don't exist in other areas of the law or in other major countries, other than the USA and Canada.

HK