At the trial, which got underway this week in federal court in Boston, Tenenbaum's lawyer is admitting that his client shared tracks on Kazaa but asking the jury to find that doing so didn't infringe on copyright. It's somewhat like arguing "guilty with an explanation." That is, Tenenbaum is hoping to persuade the jury that he didn't do anything wrong, even if he did violate the letter of the copyright law.
That type of jury "nullification" is rare, but not unprecedented. It's one reason why going to trial is always a roll of the dice.
The presiding judge, Nancy Gertner, said this week that she won't allow Tenenbaum's lawyer, Harvard Law School professor Charles Nesson, to present evidence on the legal doctrine of "fair use," which is a defense to copyright infringement. But concepts of fair use will inevitably come up in trial given that Nesson's basic argument is that Tenenbaum's sharing of music was legitimate, regardless of the legal meaning of "fair use."
The concepts will also come up if the jury finds that Tenenbaum infringed on copyright and then assesses damages -- which could range from $750 to $150,000 per track. One of the factors that goes into "fair use" is whether a particular use of copyrighted material hurts the market for it. If distributing files online stimulates buyer demand, then it's possible that doing so didn't hurt the commercial market for music. Certainly some groups -- Radiohead and Nine Inch Nails, for two -- saw huge sales after making tracks available online.
At the same time, it's no secret that record labels have seen sales shrink in the last 10 years, thanks to the availability of free music on peer-to-peer sites. In response, the Recording Industry Association of America has filed around 30,000 lawsuits against non-commercial users. In many cases, the RIAA has extracted settlements ranging from $3,000 to $5,000.
Meantime, there's been no indication that the campaign stemmed file-sharing. The record labels themselves backed away from it last December, when the RIAA announced it would stop filing new lawsuits against non-commercial file-sharers.
Only one other alleged file-sharer has had a jury trial: Jammie Thomas-Rasset. She denied sharing tracks and said her ex-boyfriend or children must have been responsible for any files tied to her IP address. That argument didn't play well with the jury, which not only found that she had infringed copyright but hit her with damages of $80,000 per track, of $1.92 million for 24 songs.