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Mother in legal fight on music downloads

01:00 AM EST on Tuesday, December 16, 2008

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — A Providence woman headed to federal court here yesterday to fight a music company’s efforts to seize her computer in its pursuit of allegations that her son illegally swapped songs online as a student at Classical High School.

Capitol Records Inc., in a lawsuit filed in Massachusetts, accuses Joel Tenenbaum of violating copyright laws by downloading and sharing seven songs while a teenager living at home in Providence. Tenenbaum, 24, now lives in Boston, where he is studying toward a doctorate in physics at Boston University.

The company has asked the U.S. District Court in Rhode Island to compel his parents, Judith and Arthur Tenenbaum, to turn over the family computer so experts can inspect it.

Judith Tenenbaum said before proceedings were to begin yesterday that the family disposed of the computer her son used as a teen years ago.

“That was two computers ago,” she said. She is reluctant to turn over her current computer, she said, because it contains personal information.

Yesterday’s hearing before Magistrate Lincoln D. Almond was postponed after he concluded that Tenenbaum’s lawyer, Harvard Law School professor Charles Nesson, was not eligible to argue before the court. It also remained unclear whether the Rhode Island lawyer seated with Nesson, Samuel Miller, was authorized to appear, Almond said.

Lawyers for Capitol Records pressed for a prompt rescheduling to allow time for experts to look at the computer before a trial in March.

“What we’re seeking is a computer that is relevant to the case,” said Daniel J. Cloherty, a Boston lawyer representing the music company. “We have work to do getting ready for trial.”

Almond rescheduled the arguments for Jan. 6.

Former Rhode Island Attorney General James E. O’Neil, also representing Capitol Records, asked the judge to order the family to preserve the computer.

Nesson responded, though not officially allowed to argue, that preserving the computer would mean the family could not operate it in the interim. “It’s a significant imposition,” he said.

Almond denied the company’s request, saying there was no basis for concern the family would destroy evidence and because there had been no effort to “preserve” the computer since the suit was filed.

Capitol Records and six other companies have brought suit against Tenenbaum and 132 others in Massachusetts, accusing them of willfully infringing upon federal copyright laws, Tenenbaum said. There are 30,000 similar suits nationwide, he said.

Nesson, who is working pro bono, contends the suit is unconstitutional because the company is seeking as much as $1 million for the seven songs Tenenbaum allegedly shared.

The company is seeking “gross and excessive damages” when compared with the allegations, Nesson said. “We’re saying it’s an abuse of the federal civil process.”

Nesson argues the suit amounts to the creation of an urban legend intended to frighten children using the Internet.

“I call it extortion,” Judith Tenenbaum said. Joel Tenenbaum said the company sought a total of $12,000 to settle the case in the last settlement conference, but that he wants to go to trial to help other people facing similar suits.

O’Neil and Cloherty and a spokesperson from Capitol Records did not return phone calls immediately yesterday.

kmulvane@projo.com

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