Trainwreck From Team Tenenbaum
from the really? dept
So, I had said I was going to try to avoid talking about the Tenenbaum file-sharing trial until it was over or unless something major happened, but reading through the reports of the first day it’s hard not to declare it to be a train wreck in motion. So far, it appears that Charlie Nesson’s argument is that “everybody’s doing it!” While I obviously don’t know the jury and don’t know what else (if anything) Nesson has up his sleeve, that doesn’t seem like the sort of argument that’s all that convincing. In the meantime, I’m going to do something that I almost never do, and actually agree with entertainment industry lawyer Ben Sheffner (who regularly goes out of his way to misrepresent what I write here) and say that it’s unconscionable that Nesson/Tenenbaum don’t have an economic expert to testify on the “damages” caused by Tenenbaum. It’s not like the idea hasn’t been brought up before. Hell, we here had a lengthy discussion on exactly that back in March.
There are numerous economic experts out there who could clearly point out that there’s no causal evidence that file sharing does any damage at all. There may be a correlation with a decline in CD sales, but not with any other aspect of the music industry — and recent research is showing that the overall industry is growing. Even some of the music industry’s own research is showing the overall industry is growing — it’s just that spending has shifted. It would have certainly been possible to make a strong case that file sharing alone doesn’t cause any significant damage to the industry. They could have shown the recent economic studies, along with evidence of many, many, many artists who have embraced file sharing and used better business models to take that attention to make more money than they had in the past. At that point, they could make the case that it’s not piracy that’s causing harm to the plaintiffs, but their failure to adapt and embrace better business models. And, from that, show that Tenenbaum’s actions didn’t cause any direct harm.
But Nesson went on a wild goose chase pursuing “fair use” — an argument that never really made much sense, and did so in a way that annoyed the judge and pretty much everyone associated with the case. He also screwed up getting the witnesses lined up for the case, only requesting that the author of one of those recent studies be allowed to testify long-past the deadline to do so. And, of course, with fair use being knocked out before the case started, and without any experts to present on damages, and a (so far) defense of “everyone’s doing it,” you have a recipe for disaster. Nesson seems much more focused on putting the whole RIAA strategy on trial, and seemed to forget that there were specific legal questions that had to be dealt with in this case. As with Jammie Thomas, I think that Tenenbaum is a bad case to go to trial, and I dread the results. At this point, the “best” result may be that they flub the case so badly that super high damages are awarded, and you end up with a repeat of the bad PR that came out following the Jammie Thomas trial (though, things are so twisted so far, I wouldn’t be surprised if the RIAA themselves to do their best to convince the jury to keep the award low).