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Outspoken Harvard Law School professor Charles Nesson crunched a Styrofoam jigsaw puzzle into dozens of pieces to show how Internet music downloading transformed CDs into “a million bits” in his dramatic opening statement at a high-profile copyright infringement trial in Boston’s federal court. Nesson is representing Boston University graduate student Joel Tenenbaum in Capital Records Inc. v. Alaujan, a District of Massachusetts case filed by several record companies and the Recording Industry Association of America against college students for making illegal Internet music downloads. Nesson said the Styrofoam illustrated how CDs changed from multi-song products available only in stores to individual songs available freely on the Internet and how young people didn’t view sharing these songs as theft. Nesson also showed the jury a drawing of the Necker Cube, an optical illusion of a cube that can be perceived in two different ways, to illustrate the notion that jurors could view Tenenbaum’s downloading from two different perspectives: harmless sharing or theft. Nesson portrayed Tenenbaum as one of countless young people who started downloading music without permission in 1999 after the advent of the online music file-sharing service Napster, before the music industry rolled out digital song-buying options. He also urged the jury to consider Tenenbaum’s actions a “minor violation” that merits only minimum damages. Federal copyright law allows for damages of $750 to $30,000 for each copyright infringement and up to $150,000 for each willful infringement. Last month, a jury in a Minnesota federal case handed a $1.92 million verdict to The Universal Music Group, owned by Vivendi, in a similar case. The jury decided that Jammie Thomas-Rasset should pay $80,000 for each of 24 songs she posted on a Web site for others to download. Nesson described Tenenbaum as a 15-year-old kid in 1999, when he started downloading the music to share with friends. “Joel’s position with respect to damages is really to rely on you, your judgment, as to what is just as to the appropriate response to what Joel did,” Nesson told the jury. Nesson’s colloquial presentation generated three objections from the plaintiffs’ bench, including two sustained by U.S. District Judge Nancy Gertner. He also stopped his presentation at one point to ask RIAA’s senior vice president of legal affairs, Jennifer Pariser, who was seated at the plaintiffs’ table next to the podium, to pour him a glass of water. She complied. Plaintiffs’ attorney Timothy Reynolds, a partner at Denver-based Holme Roberts & Owen, started his opening statement by emphasizing that record companies are made up of real people who “face a significant threat to their livelihood” from illegal music downloading. Reynolds also said that the plaintiffs would prove that even though the case focuses only on Tenenbaum’s downloading of 30 songs, his infringement was “massive” because he distributed thousands of songs through Internet peer-to-peer networks. “The defendant knew what he was doing was wrong each step of the way,” Reynolds said. Several pretrial developments and orders have hampered Tenenbaum’s case. On Monday, Gertner said Tenenbaum couldn’t use fair use, or the legal use of copyrighted works in particular circumstances, as a defense. Earlier this month, Gertner demanded a brief from Nesson to explain why he shouldn’t face sanctions for posting deposition excerpts on the Internet. Gertner’s earlier orders also rejected Tenenbaum’s counterclaims, including the argument that the record industry engaged in an “abuse of process” by bringing the copyright infringement lawsuits against young people who don’t have enough money to hire lawyers.

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