Harvard Prof To Argue Against File-Sharing Law

The trial of a Boston University graduate student accused of illegal music downloading is slated to begin today, as his legal team, headed by Harvard Law School cyberlaw professor Charles R. Nesson, seeks to set a legal precedent that would protect digital file sharers from prosecution and avoid as much as $4.5 million in damages.

It will be only the second case to see trial under the landmark Digital Theft Deterrence Act—which imposes up to $150,000 in penalties for each instance of willful copyright infringement. Approximately 30,000 people have settled fines averaging $3,000 to $12,000 out of court since the law's passage in 1999. The first case tried in court ended in a mistrial.

As a result, 25-year-old Joel Tenenbaum's fight against the music industry has the potential to set a precedent for the treatment of future cases of illegal file-sharing pursued by the Recording Industry Association of America, an association that led the industry's legal and lobbying battles against online file-sharing.

Nesson, who co-founded the Berkman Center for Internet and Society in 1996, is expected to defend his client by challenging the constitutionality of the damages Tenenbaum faces. Nesson has argued that the RIAA and the plaintiffs—which include Sony and Warner Brothers—are "seeking to punish him beyond any rational measure of the damage he allegedly caused," and such a punishment would violate the 5th and 8th Amendments.

Tenenbaum was initially accused of illegally sharing seven songs, a tally later increased to 30 songs. The RIAA estimates that illegal music-sharing worldwide costs $12.5 billion each year and causes 71,000 job losses in the United States.

A well-known proponent for freedom of Internet use, Nesson wrote that he does not dispute the need for copyright laws. Instead, he wrote, existing copyright laws should be modified to reflect the evolving social norms of a digital, interconnected world.

As such, Nesson plans to argue that Tenenbaum's actions constituted "fair use" of the copyrighted songs he allegedly downloaded. Fair use is determined by four factors—the purpose of one's use, the type of work under copyright protection, the amount and importance of the portion used, and the effect of the use on the market.

If Nesson's strategy succeeds, the case could set a precedent that legalizes all non-commercial file-sharing, on the grounds that such behavior in a digital society does not violate existing copyright laws.

Not all cyberlaw professors at Harvard agree with Nesson's unorthodox approach. In an emailed exchange, Law School professor Lawrence Lessig, who argued against copyright extensions before the Supreme Court, wrote that Nesson did "the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what [Tenenbaum] did."

But Nesson is no stranger to controversy, most recently defending two men accused of smoking marijuana by calling for jury nullification--for the jury to return a vote of "not guilty" despite acknowledging a violation of the law. (Lessig wrote in an email that jury nullification would be "the only honest frame for Joel's case.")

The trial will take place at the United States District Court for the District of Massachusetts under Judge Nancy Gertner. It is expected to be completed by the end of this week.

—Staff writer Athena Y. Jiang can be reached at ajiang@fas.harvard.edu.