There are numerous economic experts out there who could clearly point out that there's no causal evidence that file sharing does any damage at all. There may be a correlation with a decline in CD sales, but not with any other aspect of the music industry -- and recent research is showing that the overall industry is growing. Even some of the music industry's own research is showing the overall industry is growing -- it's just that spending has shifted. It would have certainly been possible to make a strong case that file sharing alone doesn't cause any significant damage to the industry. They could have shown the recent economic studies, along with evidence of many, many, many artists who have embraced file sharing and used better business models to take that attention to make more money than they had in the past. At that point, they could make the case that it's not piracy that's causing harm to the plaintiffs, but their failure to adapt and embrace better business models. And, from that, show that Tenenbaum's actions didn't cause any direct harm.
Beyond that, the defense could challenge the industry to prove that these 30 songs caused some specific quantum of damages, and that statutory damages at the low end of the scale would more than compensate for the fact that the direct damages are nominal.
But - as I pointed out here - Prof. Charles Nesson's attack is limited to hand-waving about generational change and crumbling business models. Masnick writes:
Nesson seems much more focused on putting the whole RIAA strategy on trial, and seemed to forget that there were specific legal questions that had to be dealt with in this case.
Since liability is really not in doubt, the only question is what the jury will do with statutory damages. The Thomas-Rasset jury awarded an an amazing $1.9 million verdict based on stat damages of $80,000 per work. As Tenenbaum seems to have continued to download huge numbers of files long after he received RIAA love letters, he could be seen as more culpable than Thomas-Rasset. In that case, the $150,000 level is not out of bounds. Don't be surprised if you see a verdict approaching $4.5 million.