A champion of online sharing loses in court

A champion of online sharing loses in court

Boston: In the community of activists trying to break down Internet barriers that they say stifle creativity and knowledge, few figures are as revered as Charles Nesson. As co-founder of the Berkman Center for Internet and Society at the Harvard Law School, Nesson is renowned for his ability to inspire generations of students to see the Internet as a force for positive change, not just cables and computers.

But when Nesson, 70, took on the recording industry in a civil case here over sharing music online, the champion stumbled. On 31 July, a jury issued a $675,000 (Rs3.23 crore) judgement against Joel Tenenbaum, a Boston University graduate student who was defended by Nesson. Tenenbaum’s offence was downloading and sharing 30 songs.

It was a stinging defeat for Nesson and to many in the legal community.

Taking on a lawsuit that his own allies warned was ill-advised, Nesson acted in ways that many observers found bizarre and even harmful to the case. In 2004, the Recording Industry Association of America contacted Tenenbaum and threatened to sue him over songs he had downloaded and shared without paying.

But the problems for the case started before trial; Nesson’s court filings and tactics were informal and offbeat. As part of his desire for transparency and documentation, he posted a recorded telephone conference call with the judge and industry lawyers on his blog and even posted email messages from friends discussing case strategy.

Lawrence Lessig, an expert on copyright at Harvard Law School, expressed reservations about the suit and counselled against Nesson’s plan to argue that Tenenbaum had made “fair use" of the music. Fair use is a doctrine more commonly cited when small portions of a published work are quoted elsewhere.

Lessig was proved right: Judge Nancy Gertner prohibited the fair use defence. The crucial blow came on the stand when Nesson encouraged Tenenbaum to admit he had downloaded and shared songs after having denied it in depositions “because it’s the truth", Nesson said, stripping the case to the core issue of the law’s unfairness.

Gertner essentially declared the case over, directing a verdict against Tenenbaum and leaving the jury to decide only the penalty.