Second RIAA piracy trial starts

Boston University doctoral student Joel Tennenbaum is being sued by the RIAA for sharing 30 songs through the Kazaa peer-to-peer filesharing application

The Recording Industry Association of America may have decided not to pursue further file-sharing trials as a policy, but one last case is set to get underway today and promises to bring a dash of the theatrical into the courtroom. Boston University doctoral student Joel Tennenbaum is being sued by the RIAA for sharing 30 songs through the Kazaa peer-to-peer filesharing application in 2004. Tennenbaum could receive a maximum of $4.5 million if he loses, but that overwhelming fine has not daunted the zealousness of his defense team.

Tennenbaum is being defended by Harvard School of Law professor and Founder of the Berkman Center for Internet & Society, Charles Nesson who is being assisted by a "small group of passionate students" under the professor's guidance. The team has created an informational Website called "Joel Fights Back" where you can find background on the case, and the defense team also plans on posting a blog at the site.

The most interesting part, however, are the unusual tactics that Nesson has been employing in defense of his client. Trial proceedings are barely underway, and already Nesson has become one part interior decorator, one part psychologist and today he may add explosives expert to his list of growing professions.

Here's a breakdown of Nesson's actions from yesterday:

Courtroom Feng Shui: Nesson convinced Boston federal judge Nancy Gertner to allow him to rearrange the courtroom furniture yesterday, according to Joel Fights Back. The Harvard professor said the traditional courtroom set-up-- where the defendant's and plaintiff's tables face the judge with the jury off to the side--was not a good "rhetorical space." In the new set-up, the defendant's table faces the jury, while the plaintiffs will continue to face the judge.

Jury Selection: Jury selection took up all of yesterday's proceedings, and several prospective jurors were disqualified after they admitted to using p2p networks in the past, according to Ars Technica. But it was the non-traditional questioning coming from Nesson that bordered on the bizarre. While RIAA lawyers interviewed candidates about their views on the music industry and file sharing in general, Nesson asked prospective jurors what they thought of his wardrobe, if they played poker, what 'their passion' was and what the jury candidates thought about decriminalizing marijuana.

Styrofoam kaboom: Nesson claims that differences between atoms and bits are central to his case. For that reason, Nesson says he will use a demonstration that includes a block of styrofoam and a Necker Cube--a drawing of a hollow, 3-dimensional square. I'm not sure what's going on exactly, but Ars Technica reported that when Nesson mentioned his demonstration in court yesterday, RIAA lawyers said they intended to object to the "exploding Styrofoam." I don't know what exploding styrofoam has to do with file-sharing, but maybe Nesson just wants to kick things off with a bang.

Yesterday, the defense received a difficult blow to its case, when judge Gertner said the defense may not use the doctrine of fair use as part of its defense, according to Ars Technica. The defense had planned on using fair use to argue that Tennenbaum had only intended to use the songs he downloaded for personal use. Compounding the defense's problem is that Tennenbaum has already admitted in court to downloading the songs, and the RIAA has his hard drives to prove it.

This is the second case where the RIAA has brought someone accused of file sharing to court. In June, Jammie Thomas-Rasset was ordered to pay $1.92 million over accusations she publicly traded 24 songs online.

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Ian Paul

PC World (US online)
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