In retrospect, Harvard's eventual involvement was obvious. As far back as 2007, we noted that RIAA prelitigation letters had yet to be sent to Harvard, and one reason for that may have been the quite public opposition of Harvard Law School to the entire RIAA legal campaign.

Law professor Charles Nesson and John Palfrey, director of the Berkman Center for Internet & Society (which Nesson co-founded), made their position clear. "Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a 'passive conduit' for students downloading music," they wrote in 2007. "We agree. Harvard and the 22 universities to which the RIAA has sent 'pre-litigation notices' ought to take strong, direct action... and tell the RIAA to take a hike."

Those notices were an attempt by the RIAA to get schools involved in the litigation process. Universities would, in theory, pass RIAA settlement letters on to students after being provided with an IP address suspected of illicit file-sharing. The schools would be "doing their part," while the recording industry got its missives delivered without needing to bother with courts and judges and subpoenas.

"Universities should have no part in this extraordinary process," wrote Nesson and Palfrey. "The RIAA's charter is to promote the financial interests of its corporate members—even if that means preserving an obsolete business model for its members. The university's charter is quite different... The university strives to create knowledge, to open the minds of students to that knowledge, and to enable students to take best advantage of their educational opportunities. The university has no legal obligation to deliver the RIAA's messages. It should do so only if it believes that's consonant with the university's mission."

It wasn't quite a declaration of war, but it did amount to an Army unit trotting out a massive howitzer, oiling it up, and firing off some test shots. Powerful interests at Harvard Law were displeased enough by the RIAA actions to speak out, but they weren't yet ready to play an active role.

That is, until Boston University graduate student Joel Tenenbaum got in touch with Nesson in 2008. Nesson took the case, acting as Tenenbaum's attorney, but he outsourced the work of research, strategy, and brief writing to a set of eager Harvard Law students. The students would quickly mount an ambitious defense, not just of Joel Tenenbaum, but of the claim that the RIAA legal campaign was unconstitutionally excessive and improper. Armed with a law library, Twitter, a Web site, and caffeine, the students have already made sure that the upcoming Tenenbaum trial will eclipse the Minnesota Jammie Thomas case for sheer spectacle.

And, if things go their way, the world will get the chance to see it all live on the Web.

Students defending students

Prof. Charles Nesson

Professor Nesson's CyberOne course at Harvard gets students involved in hands-on legal issues. In its Fall 2008 incarnation, one of the projects that Nesson approved was the defense of Joel Tenenbaum, who until that point had been pro se—that is, defending himself.

Joel's mom was a lawyer, and she provided assistance, but Joel was in a bad way. Up against the RIAA legal machine, his case had been filed in Massachusetts federal court and consolidated with a number of other cases. The RIAA's initial offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the case went to court in 2007, the judge ordered the parties to settle and work it out between themselves. Joel offered $5,000. The RIAA demanded $10,500.

Joel declined, but the decision was a fraught with risk. Unable to pay the thousands (or tens of thousands) of dollars for a lawyer who could fight the case well, he risked losing in court. That could mean staggering judgments of "statutory damages" that have no necessary connection to any actual damages suffered by any actual group—perhaps as much as a million dollars for the seven songs at issue in the case (he risks $150,000 in fines per infringement).

Judge Nancy Gertner, the federal judge overseeing the case, comes from the new generation of US judges: she knows her way around technology, writing her own blog and appearing on podcasts.

Gertner was (and is) facing numerous file-sharing cases, many of which are for large default judgments. Judges, interested as they are in justice, don't usually prefer to hand out big default judgments if they don't need to; they prefer to hear all sides of a story first.

In fact, Gertner hasn't been shy about her opinion of the music industry's litigation. When Tenenbaum was explaining in one hearing that he didn't yet have a lawyer, Gertner eventually unleashed the following astonishing statement (PDF):

I've said this before in open court. There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights. Some category of individuals are defaulted because they read the summons, and they haven't the foggiest idea what it means and don't know where to go, so they're defaulted, and they owe money anywhere from $3,000 to $10,000 as a result of these defaults... As I said, it does not make sense, however, to fight them alone. It simply doesn't make sense to fight them as an individual, per se, and to some degree you run the risk that the longer you litigate without really having a basis to do so, the longer you fight without having a basis to do so, the plaintiff's legal fees go up and up. I can't say this is a situation that is a good situation or a fair situation. It is, however, the situation.

The judge then concluded by telling the RIAA lawyers that they were "basically bankrupting people, and it's terribly critical that you stop it." She ordered Tenenbaum and the RIAA into an immediate settlement conference, but the music industry had already raised its fee (spurred, it said, by the court costs it had incurred from all the hearings and motions) beyond what Tenenbaum was willing to pay.

I can't say this is a situation that is a good

situation or a fair situation. It is, however, the

situation.

Judge Gertner also promised to help Tenenbuam find a lawyer, and she put him in touch with Professor Nesson.

Nesson saw in the case an opportunity for to get his students involved directly in a hot-button federal case. In the fall of 2008, Nesson taught a course called CyberOne, which "has segued into a series of working groups positioned to work on the forefront of important issues central to cyberspace, especially issues of digital freedom, open online education, and restorative justice."

Tenenbaum's case was chosen as a course project, though it wasn't the only one; other students worked on legitimating poker "as a teaching tool," another dealt with marijuana decriminalization, and third sought "to further restorative justice and reconstitution for the people of Jamaica through its support of constitutional reform."

But the Tenenbaum case offered the most direct way for students to immerse themselves in an issue of tremendous importance to the "born digital" generation that they represent. Nesson gave the students plenty of work, too; though he is representing Tenenbaum as his attorney, it is the students who are doing the research, writing the briefs, and handling the public relations. Nesson oversees the case like "a senior partner at a firm," says Matt Sanchez, one of the student leaders on the project.