BU Student Files for Retrial in File-Sharing Case

The legal team representing Joel Tenenbaum, a Boston University graduate student who lost the second-ever jury trial on file-sharing, filed a motion on Monday requesting a retrial.

In the motion, Tenenbaum's counsel—led by Harvard Law School Professor Charles R. Nesson '60—argued for a new trial by disputing Judge Nancy Gertner's interpretation of the fair use of music files. Tenenbaum had been ordered last summer to pay the Recording Industry Association of America $675,000 for illegally downloading music.

Nesson and the defense asserted that when Tenenbaum downloaded 30 songs in 2004, music listeners were unable to obtain "exactly the songs they wanted, in the format they wanted" from the recording industry.

During the trial, Gertner recognized an "interregnum period," when listeners had no way of purchasing digital media legally before the advent of the iTunes Music Store in 2003. She noted that during this period, "unauthorized use" should be considered "more fair" since there was not yet a ready market in which users could pay for the files.

"The choice that consumers had between freely owned and transferable material and going out to a record store was an unbalanced and unfair choice," Nesson said in an interview with The Crimson.

But Nesson argued that the court should consider the interregnum period to be extended until 2007. From 2003 to 2007, music files purchased online were protected with digital rights management technology, which prevents the files from being converted to different formats and transferred to other listening devices. The difficulty of converting DRM-protected files into different formats sufficiently differentiate these files from DRM-free ones, he said.

"iTunes did not offer an equivalent to the DRM-free material you could get on Napster," Nesson said. "It took years of people like Steve Jobs, people on the industry for them to realize how stupid [DRM] was."

In the filing, Nesson also wrote that the court's treatment of evidence unfairly implied that Tenenbaum had acted dishonestly during the litigation process.

Tenenbaum wrote a letter to the RIAA in November 2005 offering to settle the case by paying $500 and removing the files in question from his computer. The letter was redacted when presented as evidence, leaving only the paragraph in which Tenenbaum wrote that he would delete the files. Nesson asserted that this redacted letter gives jurors the impression that Tenenbaum unconditionally agreed to remove the files from his computer, when in reality he only promised to remove the files as part of the $500 settlement.

In addition, Tenenbaum's defense team argued that the statutory damages awarded by the jury were "grossly excessive," since Tenenbaum as an individual caused the plaintiffs no provable injury and acted without malicious or profit-seeking intent.

Tenenbaum will appeal if the motion for a retrial is denied and has already requested in the motion that the damages be reduced to the minimum amount—$750 per song, for a total of $22,500—if the court does not grant him a new trial, according to Nesson.

—Staff writer Derrick Asiedu can be reached at dasiedu@fas.harvard.edu.