Joel Tenenbaum, BU’s own music pirate found liable last summer for copyright infringement in a case that attracted considerable media attention, is in the news again. A federal court jury ordered Tenenbaum to pay $675,000 in damages to copyright holders for downloading 30 songs. That’s $22,500 a song. Tenenbaum’s pro bono lawyer Charlie Nesson argued yesterday to trial judge Nancy Gertner that the appropriate measure of damages would be the revenue lost because Tenenbaum didn’t purchase the songs from iTunes. At the iTunes price of $.99 a song, assuming iTunes would pay the rights holder the standard 70% of the sale price, Nesson said the total damages should be no more than $21. The Boston Globe article about the hearing does not mention whether Gertner, plaintiffs’ counsel, the court clerk, the bailiffs, and the courtroom’s audience burst into laughter mention of Nesson’s damage figure. There had to be considerable eye-rolling. Many commentators, including me, have been critical of Nesson’s handling of this case (see prior posts). Today he earns kudos for passing the straight-face test. The record companies’ lawyers response was that Tenebaum “has no one to blame but himself.”
Nesson’s strategy may prove to be a wily gamble. Gertner’s 2009 order explaining her decision not to allow Tenenbaum’s fair use defense signaled in very clear terms her discomfort with the state of the law regarding file-sharing. Gertner is very smart and not afraid to take a fresh look at this case. Nesson’s $.70-a-song argument is calculatedly ridiculous. Nesson did not cover himself with legal glory before and during Tenenbaum’s trial, but he is very smart. By staking out such an extreme position he leaves Gertner plenty of room to maneuver.