Joel Tenenbaum, the second P2P defendant to take his case all the way through trial, is on the hook for $675,000 in damages. But according to his lawyer, Tenenbaum only caused the record labels $21 in damages.

The disparity between these two figures is, in the words of Harvard Law's Charles Nesson, "monstrous and shocking."

Nesson has just filed his final argument on the issue of damages. His basic point, that a final damage award must have some relation to the actual harm, leads him to make a simple calculation about Tenenbaum's transgression. "Had he purchased the 30 songs on iTunes, he would have paid 99 cents apiece, of which Apple would have passed on 70 cents to the record companies," says the filing. "Assuming, contrary to fact, that the record companies have zero costs so that every cent returned to them is profit, the total return would have been $21.00."

This isn't what the labels say, of course, Instead, at both the Tenenbaum trial and the earlier Thomas-Rasset trial in Minnesota, label attorneys claimed that P2P file-sharing was crippling their industry, and that each specific file-sharer bore some role in that destruction by virtue of offering files for upload. With no real way to know how many times a particular user distributed a song to others, the labels argue that statutory damages are the best way to deal fairly with the situation.

Not so, says Nesson. He makes the case that uploads don't matter; that the actual economic impact of Tenenbaum's downloading is the price he would have paid had he downloaded the songs.

But, the plaintiffs say, by including these songs in his share folder, Tenenbaum distributed them to millions of people, causing the record companies "incalculable" damages. This is completely false hyperbole. Not a single person who downloaded these songs using Kazaa would have been impeded from obtaining them had Tenenbaum blocked access to his share folder. Tenenbaum was not a seeder of any of these songs... Once the initial seeds had proliferated, the addition of one more copy to the unlimited, easily-accessible supply could have had no economic consequence whatsoever. Plaintiffs would not have realized a single additional sale had Tenenbaum blocked access to his share folder.

This seems an odd defense—in essence, it's the idea that no harm was actually caused because the songs could have been had elsewhere. Getting them from Tenenbaum was just a random accident. This is akin to arguing that, if you entered a record shop and 75 people offered you an illegal copy of an old Beatles album, that the person you accepted it from could not be held liable for any harm just because you could simply have gotten the exact item from someone else with no additional work.

In any event, Nesson made a well-argued case that statutory damages must have some relation to damages, and he referred on several occasions to a similar ruling from the judge overseeing the Jammie Thomas-Rasset trial in Minnesota.

His filing is also effective at exposing the absurd amount of the particular damage award. Nesson conducts a thought experiment: "In 2008, one study reported that the average British teenager had 800 illegal tracks on his iPod. If $22,500 per infringement were constitutional, this would mean the average teenager is exposed to an $18 million dollar verdict against him, clearly an absurd, arbitrary, and unconstitutional result."

Or again, for a footnote: "For additional absurdity, imagine further that the industry actually got judgments of $18 million in damages from roughly 30,000 teenagers, which is approximately the number of lawsuits they filed against consumers until the end of 2008. That would mean they had outstanding judgments for $540 billion dollars—or more than the total revenue the recording industry can expect to earn in about 50 years at its current size of $11 billion per year."

One can almost hear the industry's rejoinder, however: big statutory awards are meant to serve in part as a deterrent, precisely because it is impossible to sue everyone engaged in the activity. If everyone could be targeted, each penalty would be much less severe (this is the basic line of argument behind the various "graduated response" proposals one sees around the world).

The record business certainly hopes to prevent Judge Gertner from ruling in Nesson's favor on this case, as it would mean that both federal judges who have overseen trials put tough limits on statutory awards in P2P cases. Gertner did issue a directed verdict against Tenenbaum, though she has also castigated the RIAA's litigation campaign from the bench and has indicated that she would have been quite open to limited "fair use" defenses. There's no timeline on when her ruling will come down.