Joel Tenenbaum, accused in August 2007 of swapping seven songs on KaZaA, is mounting an unusual defense. First representing himself, Tenenbaum has now attracted the help of a Harvard Law professor and a class of cyberlaw students, and he is intent on taking the case to a trial. In a counterclaim against the recording industry, Tenenbaum's legal team argues that the entire RIAA "onslaught" is unconstitutional and that federal judges should impose serious limits on the group's legal campaign.
Professor Charles Nesson of Harvard Law (a founder of the prestigious Berkman Center for Internet & Society) has agreed to help Tenenbaum, and he has enlisted the help of students in his Fall 2008 course, "CyberOne: Law in the Court of Public Opinion." The group wants to do more than help Tenenbaum out of a tough spot; they want to challenge the underpinnings of the entire lawsuit campaign against the "born-digital generation."
And if sensationalist language could win court cases, this one would be over. Nesson and his students defended their claims this week in a court filing in which they argued that the RIAA's lawsuits had "the ulterior purposes of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future."
Charles Nesson
And that's just the warmup. The complaint goes on to ask: "Is the law just the grind of the statutory machine to be carried out by a judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice"?
The basic argument, stripped of this sort of fervid verbiage, is essentially threefold. First, the damage awards in these cases are simply excessive and violate the Constitution's 14th Amendment. Second, these are essentially criminal cases and Congress has unconstitutionally delegated prosecutorial power to a "private police force" (the music business). And, finally, because the cases are essentially criminal, they should not be tried under the standards of civil law.
Nesson also objects more generally to the fact that the entire campaign appears targeted more at detterence of other than at actually punishing Tenenbaum for his alleged seven song downloads (hence the "urban legend" quote above).
Even as this counterclaim against the RIAA is pursued, the case against Tenenbaum goes forward. In late September, he was deposed by recording industry lawyers, and he showed up to the meeting in a Red Sox T-shirt and a pair of sunglasses. His wardrobe prompted a tense exchange between Nesson and a music industry lawyer that was written up by one of the students who attended the deposition.
The music industry lawyer "noted that Joel was the one being unduly harsh when he filed two separate motions for sanctions. As evidence of Joel’s supposed disrespect, he pointed out: 'Here is a kid who shows up in our office wearing a Red Sox T-shirt and sun glasses!' The decision was made to save that conversation for another day and continue the deposition."(Nesson also tweeted throughout the deposition.)
Indeed, one gets the sense that "respect" is a commodity in short supply on both sides in the case. The case is currently scheduled for trial in December, where Tenenbaum will have the chance to seek "justice from judge and jury" as he faces the "onslaught the plaintiffs have imposed and are continuing to impose."
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