As I write this, a jury in Rhode Island is deciding how many millions in damages to award to the record companies in the .
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This case was supposed to pit Harvard's crack legal team against the record companies, with the prime objective being to . Unfortunately, it was the legal arguments that cracked when Judge Nancy Gertner threw out Team Tenenbaum's argument that
After that, their case turned to styrofoam -- literally. Defense attorney Charles Neeson 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: .)
On the stand, 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.
But relying on a jury to make that decision is beyond risky. Look what happened to Jammie Thomas-Rasset. Found liable once for around $9,000 per song, she appealed, was declared guilty again, and is now on the hook for . She's got .
The jury selection process in the Tenenbaum case was "tortured" by even the judge's standards. The record companies did their job, weeding out jurors who might be sympathetic to file-swapping college students and/or know much about tech. Nesson, by contrast, wanted to know (apparently he's a big Steve Jobs fan) or his admission to smoking marijuana in the past. No, I'm not making that up. (Though I suspect that "by the past," he meant "in the past five minutes, in the bathroom down the hall.")
Writing all this, I'm starting to wonder if Nesson is actually licensed to practice law or just a wacky impersonator, like Leonardo DiCaprio in "Catch Me If You Can." It's certainly entertaining from the perspective of someone who isn't on the hook for $4.5 million, but I have to wonder how Team Tenenbaum feels about all this.
As I've said too many times before, . It has shifted from its original intent -- allowing content creators a fair return for their intellectual endeavors -- and moved into the field of revenue assurance for copyright holders, who are usually not the people who created the content in the first place. If the Tenenbaum trial doesn't change this (and it sure doesn't look likely at this point), something else must.
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