Jury deliberating in Tenenbaum case; Nesson: 'Joel was addicted. He became addicted to free music with Napster.'

Joel Tenenbaum is a “hardcore, habitual, long-term, persistent infringer, who knew what he was doing was wrong and did it anyway,” recording industry attorney Timothy Reynolds argued to the jury who will determine how much the 25-year-old grad student will have to pay for his admitted use of peer-to-peer software to obtain music for free.

But it is “hard to imagine an infringer who is lower on th[e] scale [of culpability] than Joel,” countered his counsel, Harvard Law School professor Charles Nesson. “Let the punishment fit the crime.”

And Nesson made a blatant play for jury nullification, urging the jury to award damages on only one song among the 30 Tenenbaum has admitted infringing. “If you don’t fill in any of those boxes” for damages, “that’s totally within your power.” The plaintiffs strenuously objected -- pleas for nullification are strictly forbidden -- and a clearly angered Judge Nancy Gertner agreed, reminding the jurors of their obligation to follow the law.

With liability already decided in plaintiffs’ favor in an early-morning order by Judge Gertner, the focus of the case turned to willfulness (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights") and damages. The two issues are closely related. Under Section 504(c) of the Copyright Act, the jury may award statutory damages of between $750 and $30,000 per infringed song in the case of “regular” or non-willful infringement. If, however, the jury finds Tenenbaum’s infringement to be willful, the maximum it may award jumps five-fold, to $150,000 per song.

“There is no issue as to liability. There is no issue as to liability,” Judge Gertner repeated for emphasis.

Given the finding of liability, the jury must award at least the minimum of $750 per work, or $22,500 total for the 30 songs at issue. The maximum potential award is $150,000 multiplied by 30, or $4.5 million. At the first Jammie Thomas-Rassset trial, the jury awarded $9,250 per song; at her retrial in June of this year, a different jury awarded $80,000 for each of 24 songs, totaling $1.92 million.

As they did in the two Thomas-Rasset trials, Plaintiffs did not ask the jury to award a specific amount of damages within the statutory range. “How much in damages should be awarded here is your job,” said Reynolds, “and we leave it in your good hands.”

Reynolds and Nesson painted starkly contrasting pictures of Tenenbaum, who is on his way toward a Ph.D. in physics at Boston University.

To Reynolds, Tenenbaum was a repeat miscreant, who started using Napster in 1999, turned to numerous other peer-to-peer services when the last one got shut down, and continued his infringement despite multiple warnings -- including at least one from his own father -- that he should stop. “Did he stop? Did he even consider it? Not at all… He actually increased both the size and scope of his infringement,” said Reynolds, of the Denver-based Holme, Roberts & Owen.

But Tenenbaum couldn’t stop himself, said Nesson. “Joel was addicted. He became addicted to free music with Napster.” And he never intended to make money from his infringement, or to harm copyright owners. “His purpose was completely personal. No maliciousness. No intent to injure.”

Nesson conceded that Tenenbaum may have saved a small amount of money by downloading songs for free instead of paying for them. But he strenuously denied that Tenenbaum’s distribution to others caused any harm to the plaintiffs, given that many others were likely sharing the same songs. “There were many, many copies of these songs available,” said Nesson. “The fact that one more become available doesn’t change anything.”

But Reynolds pointed out that Tenenbaum admitted being the initial “seeder” of at least one file, an unreleased Deftones song that he recorded off a television performance and made available on KaZaA, and then publicized its availability in a Deftones fan forum. It’s “inconceivable” that no one downloaded that song from Tenenbaum, said Reynolds.

Judge Gertner then instructed the jury, and at 1:43 p.m., the five men and five women, all white and all from Boston's suburbs, were sent to eat their lunch and deliberate.