Tenenbaum defense relies on hot air, not facts

Wacky Harvard Prof. Charles Nesson crumbled a styrofoam box and displayed a "Necker Cube" optical illusion in his opening statement in the Joel Tenenbaum filesharing trial, Ben Sheffner reports from Boston for Ars Technica.

That proved apparently that the Internet transformed the quantum of music from album to song and that you can look at any case from different perspectives. OK, fine.

But the rest of Nesson's statement provides further proof that Joel's case will have little to do with the evidence - including the usual MediaSentry evidence as well as Joel's deposition admissions that he downloaded music via Kazaa - and will focus entirely on some sort of moral argument that downloading ain't illegal if everybody does it.

"They listen to music with the technology available, and enjoy it with the technology available," he said of the "digital natives" studied by John Palfrey, the Harvard Law School professor whose proposed expert testimony Judge Gertner excluded as irrelevant.

And Tenenbaum doesn't bear responsibility for the music industry's problems of the past decade. “The Internet was not Joel’s fault. Joel did not make the Internet,” said Nesson. Referencing the sudden availability of "free bits" on the Internet, he said, "If you’re in the desert and it starts to rain, you need a new business."

All very well, but in the meantime there are witnesses and MediaSentry's so-called evidence and experts. In fact, the defense is in shambles, as Sheffner notes on his personal blog:

What has been the biggest mistake by Joel Tenenbaum's defense team? Failing to depose a single witness? Angering the judge by recording conversations with the court and opposing counsel? Spending time on a quixotic and ultimately unsuccessful effort to have the case webcast, rather than focusing on trial preparation? Part-way through the trial, it's now clear to me that the biggest mistake was a different one: failing to secure an expert to testify as to actual damages, i.e., the harm caused by Tenenbaum's downloading and "sharing" of the 30 songs at issue in this case.