The discussion sticks to what will likely be the heart of the case (once all the wackiness about webcasts, depositions of opposing counsel, and recording phone calls is put aside): is the Copyright Act's statutory damages scheme unconstitutional, at least as applied to an individual like Tenenbaum?
Nesson eschews the wackiness that has marked his litigation tactics in this case and makes a quite measured argument why it would be unreasonable and unconstitutional to impose statutory damages of up to $150,000 per song on Tenenbaum when, in his view, the only "damage" sustained by the labels was the retail cost of a download (about $1 per song).
The law professors (Catherine Sharkey of NYU, Dan Markel of Florida State, and Thomas Colby of GW) express some sympathy for Nesson's arguments, but conclude that they are unlikely to prevail under current law.
And the RIAA's Marks emphasizes that, while unpopular, the labels' litigation against individuals like Tenenbaum has served the valuable purpose of dramatically increasing public awareness of the illegality of using p2p services to upload and download copyrighted works. Marks also makes the point that the correct question to ask in measuring the litigation's success is not "Did it stop piracy?" but instead "Would piracy have been worse today had the cases never been filed?"
Definitely worth listening to the full hour.
For those not familiar with the issues, I suggest reading the following before listening:
- Plaintiffs' Motion to Dismiss Counterclaims (esp. pages 15-20)
- Tenenbaum's Opposition (esp. pages 4-13)
- Justice Department's Brief in Support of Constitutionality of Statutory Damages in Capitol Records, Inc. v. Thomas