Back in October, we covered the case of Joel Tenenbaum, a Boston graduate student accused by the RIAA of sharing copyrighted music as "sublimeguy14" on KaZaA. Tenenbaum did not go quietly into that dark night; instead, he offered the RIAA a settlement of $500. The music lobby declined, and it took Tenenbaum to court.
But Tenenbaum decided to fight the case, and he lined up the support of Harvard Law's Charles Nesson and his class of law students. Not content with simply taking on the Tenenbaum case, Nesson & Co. have attacked the entire legal underpinning of the RIAA's litigation strategy, charging that massive damage awards are unconstitutionally high and that the RIAA is operating as a "private police force" by pursuing what are essentially criminal cases.
And they have done so in prose that is nothing if not distinctive for a legal filing: "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?" asks one. You get the idea.
Now, they want the whole trial broadcast on the Internet.
Let's do it live
With the case now before the judge, Nesson and his students are now making a strong push for an unusual request: they want the entire case made available digitally over the Internet. The Harvard team wants to stream the trial live and record it for later use. They tried this yesterday during a hearing, but the judge said no; the larger issue about whether the trial itself can be broadcast won't be settled for a few more days.
Charles Nesson
The RIAA has asked for additional time to respond to the proposal, but according to the "joelfightsback" Twitter account, that request has been denied. RIAA lawyers must file their response by January 12.
Apart from the recording issue, the other pretrial issue that is concerning the Harvard team involves Tenenbaum's computer. Well, not his computer, exactly—his parents' computer. The music industry apparently believes that Tenenbaum conducted at least some of his alleged downloading when home from school, and it wants to image the hard drive of the parents' machine to find out.
At yesterday's hearing on the matter (the one where the judge refused to allow recording), Nesson told the court, "You can hardly imagine anything more intrusive than asking anyone to disgorge a computer." (The AP has a nice writeup of the hearing.) No ruling was made, however.
Can't we all just get along?
The odd case (the RIAA subpoenaed Tenenbaum's family members as well, asking them to turn over any burned CDs Joel may have given them in the past) continues to grind on, and Nesson wonders why. Given that the RIAA says it is abandoning its widespread lawsuits, why would it not simply drop the case?
On December 19, 2008, Nesson (whose Twitter account bills him as the "dean of cyberspace") tweeted into the ether, "joel just sent me the slashdot piece saying riaa is stopping its attack campaign except for cases already pending. why that choice."
He soon had his answer when RIAA President Cary Sherman sent him a note saying, "I hope you understand that we can’t just walk away from cases we’ve filed. Doesn’t mean we want to litigate everything, we’d obviously prefer not to. If you have any thoughts on a resolution, I’d be all ears. Sorry I couldn’t tell you months ago that we were getting out of the lawsuits, but I’m sure you understand."
Nesson's response? "i don’t really understand why you are continuing the litigation, but if that’s your position then i ask you to agree to our motion, just filed, to admit internet to the courtroom, and then to join with me in making the trial the best possible example of civil discourse within the rules of federal civil procedure." (Nesson is not, it should be noted, a fan of capital letters.)
And that's where we stand at the moment. The RIAA has stopped suing (for now), though the cases against Tenenbaum and others continue apace. Nesson wants the trial broadcast to the world, while the RIAA considers the question. Assuming that the RIAA's goal all along has been in large part educational, one could hardly imagine something more educational to millions of file-swappers than watching a high-profile trial live on the web, but we shall see what we shall see.
For now, Tenenbaum is rallying his faithful through a Facebook group. 2009 should show us a host of surprising events, but one worth watching will be the attempt by some Harvard Law students—armed with Web 2.0—to see if they can take on the recording industry and win.
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