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.
Ben Sheffner, who has covered this trial really well despite his admitted sympathy for the RIAA’s position, agreed with me.
• A fair use defense, however unlikely it would have been to succeed. In fact, the defense was thrown out by the Judge before the trial because of a complete lack of evidence that might have somehow supported it. Prof. Oberholzer-Gee, also at Harvard, was the obvious expert witness who might have helped Joel on this front. His study is or ought to be known to everyone familiar with the P2P debate. If fair use was the Hail Mary pass that Prof. Nesson was counting on, he was told by Lessig, Fisher, Seltzer etc. etc. that it was a loser of an argument. Nesson notoriously published many of the emails from his colleagues confirming that the argument was hopeless. Although he persisted with it, he marshalled no relevant evidence in the Judge’s mind even to give it a chance of getting heard. Apparently, no attempt was made to use Oberholzer-Gee until about a week before the trial, which was least three months too late. If Oberholzer-Gee was not available, there were others (i.e. Andersen/Frenz 2008) who could have countered Stan Liebowitz - the able economist and very experienced expert witness called by the RIAA.• A constitutional argument about statutory minimum damages that range from $750 to $150,000 per work for much less than a dollar’s worth of actual damage. Again, Oberholzer-Gee might also have been useful here to argue that P2P sharing does no overall harm to the music industry; and,• Whether there was any actual distribution of each of the songs to anyone other than the Media Sentry investigator.
PS - August 23, 2009 - I've posted my response to Prof. Nesson's comment below here.