Theft?…Or just Harmless Sharing.

Harvard Law professor Charles Nesson hopes the jury in the copyright infringement trial, Capital Records Inc. v. Alaujan, which began today in Boston’s federal court, will conclude the latter.
Professor Nesson is representing Boston University graduate student Joel Tenenbaum in this case filed by several record companies and the Recording Industry Association of America , against numerous college students for making illegal Internet music downloads.

Back in 1999, Mr. Tenenbaum downloaded music without permission, via the online music file-sharing service Napster, before the music industry rolled out digital song-buying options. Unlike many of the other college defendants who were sued and have defaulted or settled, Tenenbaum chose to challenge the action with Nesson, who took the case pro-bono.

Earlier this week, the presiding judge, Nancy Gertner, rejected a fair use defense put forth by Nesson stating that it “propose[d] a fair use defense so broad that it would swallow the copyright protections that Congress has created.”.

In his opening statement, Nesson pointed out the Tenenbaum was only 15 when he started downloading music to share with his friends and that most young people didn’t view sharing these songs as theft. He further stated that the downloading could be viewed from both perspectives, that of harmless sharing or theft. If however, the jurors rejected the “harmless sharing” notion, he urged them to view the downloading as a “minor violation” that merits only minimum damages. Federal copyright law allows for damages of $750 to $30,000 for each copyright infringement and up to $150,000 for each willful infringement.


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