Predictions for the Tenenbaum Trial

Joelfightsback.com/BostonGlobe.com

The Tenebaum civil trial for downloading and file sharing is set to start in Boston in one week on July 27, 2009. Above, that's Joel and his Harvard student team defenders on the left and their nothing if not controversial and by most accounts either "crazy like a fox" or just plain "crazy" lead counsel, the celebrated Prof. Charles "Charlie" Nesson of Harvard Law School, aka "Billion Dollar Charlie" for his successful role in the real life case against W.R. Grace as depicted in "A Civil Action."

There are four notable sites to track this event. Joel's site is here. Charlie's blog is here. Ray Beckerman's pro defendant blog is here. Ben Sheffner's pro RIAA blog is here.

Essentially, Joel is on the book for up to $4.5 million for the 30 or so songs that the RIAA is claiming for @ up to $150,000 each. That's the potential result based upon statutory minimum damages.

Charlie has conducted a very open and controversial defense, even publishing a bunch of emails from notables such as Lessig, Fisher and others advising that a fair use defense doesn't have a chance.

In my view, the only thing that can be predicted out of all this is as follows, assuming that Joel is an ordinary middle class student and not unusually rich:

• 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.

Bankruptcy law in the USA doesn't necessarily discharge judgments for "willful" copyright infringement. See Fred Von Lohmann's analysis here.

But it's hard to imagine even the RIAA members pursuing an ordinary college student or a single mother of two such as Jammie Thomas for the rest of their lives for chunks of their wages or other modest income or assets. But then, who would have thunk that the RIAA would have sued children and dead grandmothers?

The higher the award, the more likely it is that Congress and/or the Supreme Court might get very interested.

Whatever happens, it will be interesting for all who are watching. Whatever else Charlie has done, he has made sure of that much.

BTW, all eyes are on Judge Gertner in the meantime to see how she rules on several outstanding issues, including an order to show cause arising out of some of Charlie's postings on the internet.

HK