In addition to challenging the music industry Tenenbaum's copyright case is similar to Thomas-Rasset's in that it doesn't appear to be going well.
Joel Tenenbaum just wanted to hear music and his illegal downloading and sharing of of songs caused little damage to the music industry, his attorney argued in court Tuesday.
Tenenbaum, a graduate student at Boston University, has been accused by the Recording Industry Association of America of copyright violations and the court fight is now underway. Like Jammie Thomas-Rasset, the Minnesota woman accused of illegal file sharing, Tenenbaum has decided to take on the major music labels in court rather than to settle the case.
Tenenbaum shares more in common with Thomas-Rasset than just initials. He is only the second person accused by the music industry of copyright infringement to take their case to a jury. The first was Thomas-Rasset. By refusing to settle with the RIAA, Tenenbaum risks being found liable for millions in damages. A jury in her home state ordered Thomas-Rasset to pay nearly $2 million. Her lawyers say that they will appeal the decision.
Tenenbaum is represented by Charles Nesson, the famed Harvard professor.
"He was a kid who did what kids do and loved technology and loved music," Nesson told the jury according to a report in The Associated Press.
One of the main differences between Tenenbaum and Thomas-Rasset is he has admitted sharing and downloading music illegally. Thomas-Rasset denies she is engaging in file sharing. According to Ben Sheffner, a copyright attorney who has worked for 20th Century Fox and now blogs about online copyright issues, Nesson is essentially fighting to limit the damages Tenenbaum will likely be required to pay.
"What Nesson is saying is that what Tenenbaum did isn't so bad and he didn't cause much harm," Sheffner said. "His overall point was that whatever harm was caused was due to the Internet in general, not because of what Joel Tenenbaum did."
Nesson argued that the Internet made it possible for fans to replace the CD with digital files, which freed consumers from having to buy songs they didn't want. He compared the digital music files and its effect on the music industry to how the "automobile swept into the buggy industry."
Another way that Tenenbaum has differed from Thomas-Rasset is that her trial by comparison was relatively free from courtroom drama. Nesson has appeared at times to invite it. He deputized one of his students to do much of the work in the case. Nesson was also accused of tape recording conversations that took place between both sides attorneys, which is against the rules. During jury selection, Nesson asked questions that didn't appear very significant, such as whether potential jury members liked his turtleneck sweater.
Nesson also took the unusual step of writing to the Department of Justice to step in.
"We ask you to intervene in Joel's case on behalf of the people of the United States of America," Nesson wrote, "to save the constitutionality of Section 504(c) by interpreting its damage provision for willful infringement to apply only to commercial infringers. If applied to such individuals as Joel, who has made no commercial use of plaintiffs' copyrights, the statute violates the Constitution."
Nesson is most famous for representing Daniel Ellsberg, the man who leaked the Pentagon Papers in 1971, against charges of treason leveled by the U.S. government. The Pentagon Papers revealed that the U.S. government had deliberately expanded the war in Vietnam and Southeast Asia. Ellsberg would eventually prevail.
According to Sheffner, U.S. District Judge Nancy Gertner has been less than impressed with the theatrics.
"I think there was a lot of talk in the press when Nesson came on that finally this prominent professor from Harvard was taking on the labels," said Sheffner, who has covered the trial for his blog. "They said 'Finally, someone is going to put (the music industry) in their place.' That hasn't happened, primarily because the law is simply not on their side and two because he's litigated this case in a way that has annoyed the judge."
One of the most significant setbacks for Tenenbaum, and indeed for anyone else who might challenge the RIAA in court, has been the judge's decision to prevent him from arguing that sharing copyright content on peer-to-peer networks is fair use.
The trial is schedule to continue Wednesday.