First Circuit Hears Tenenbaum File Share Appeal

Harvard Law School student Jason S. Harrow and Law School Professor Charles R. Nesson appeared before the First Circuit Court of Appeals on Monday as lead lawyers in the first illegal downloading lawsuit to be brought to the federal appellate level.

Harrow and Nesson represent Joel Tenenbaum, a Boston University graduate student who was sued by the Recording Industry Association of America in 2008 for illegally sharing 30 music files on Kazaa.

Tenenbaum currently owes $67,500 in damages, a reduction from the $675,000 of damages originally assessed by the courts.

In Monday’s hearing, Tenenbaum and his team made a second appeal to further reduce the damages.

“The more you think about this problem, and the more sources you read, and the more you look into the history of copyright, you realize just how unprecedented this ruling is. It’s remarkable that this is the first time anything like this has ever been tried,” Harrow said about the case.

In court, Harrow and Nesson argued that Congress never intended to impose statutory damages on individuals when passing the federal copyright laws and Digital Theft Deterrence Act.

However, according to the Boston Globe, lawyers representing the RIAA argued in court that Congress had intentionally set sizable penalties for individuals who illegally download copyrighted material.

While Harrow spoke primarily on behalf of Tenenbaum during the court proceedings, Nesson posed several objections during the hearing, arguing that the task of assessing statutory damages should not be left up to the jury.

“Asking the jury to decide how big a punishment is an arbitrary task and almost disrespectful to the true function of the American jury,” Nesson said.

Nesson picked up the case pro-bono in the fall of 2008 and used it as a teaching opportunity for his students in his “Law in the Court of Public Opinion” seminar. Although he worked with several students on the project, Nesson decided to invite Harrow to lead the team in Harrow’s second year as a law student.

“Jason was attracted to the issues in the case and worked very closely with the case,” Nesson said. “I was tremendously impressed with him.”

Harrow, 27, said that if his team is victorious, the verdict will be a major triumph for his generation.

“It will make it much less feasible, and therefore much less scary, for big record companies to sue individuals,” Harrow said of a potential win. “College students are not equipped to face the threat of a federal case against them for sharing a song or posting a newspaper article on a blog. It’s scary for college kids.”

With the hearings over, the ruling lies in the hands of the three judges presiding over the case. No deadline was set for the verdict.

“The court of appeals could take weeks or months,” Harrow said. “It could go a number of ways, but we have our fingers crossed.”

—Staff writer Patrick Galvin can be reached at pgalvin@college.harvard.edu.