Joel Tenenbaum, poster child for opposition to the recording industry’s mass-lawsuit campaign, has won much sympathy (and many Twitter followers), but going has been tough lately.

This week the federal judge on Mr. Tenenbaum’s case admonished his legal team, led by Charles R. Nesson, a professor at Harvard Law School and founder of its Berkman Center for Internet and Society. The judge, Nancy Gertner, denied a motion they had filed, calling it “plainly flawed,” and suggested that they were not, as judicial rules require, conferring “in good faith” with the other side, the recording industry.

“Nothing entitles the defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the local rules of this court,” Judge Gertner wrote, “or to dispense with them where they fail to suit his counsel’s teaching style.”

Students in Mr. Nesson’s “CyberOne” course have been working on Mr. Tenenbaum’s case, a fact the judge acknowledged with some frustration. “While the court understands that counsel for the defendant is a law professor, and that he believes this case serves an important educational function,” she wrote, “counsel must also understand that he represents a client in this litigation — a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the rules.”

The Intellectual Property Colloquium, a project of the University of California at Los Angeles School of Law, also questions Mr. Tenenbaum’s case in its current podcast.

Mr. Tenenbaum, who allegedly violated law by illegally sharing seven copyrighted songs, is arguing that the recording industry is suing him unconstitutionally. In the podcast, Mr. Nesson discusses his view of Mr. Tenenbaum’s possible penalty as grossly disproportionate: up to $150,000 per song.

“You’re talking about a kid who clicks a mouse,” Mr. Nesson says, “and on the basis of having clicked a mouse is pursued by federal courts with a bankrupting judgment that wrecks basically years of his life.” He calls Mr. Tenenbaum “one of the locust cloud” of file sharers and chides universities for not similarly representing other defendants in lawsuits filed by the recording industry.

But Douglas Lichtman, host of the podcast and professor of law at UCLA, isn’t convinced. He doesn’t see how the lawsuit is unconstitutional; he puts the actual harm Mr. Tenenbaum caused the recording industry at more than the “pennies” Mr. Nesson estimates; he sees room for a penalty that incorporates meaningful deterrence; and he disagrees with the perspective that Mr. Tenenbaum is somehow blameless because he wasn’t using the songs for commercial gain.

The recording industry’s mass-lawsuit campaign may not have won hearts, but it has changed minds, Steven Marks, general counsel for the Recording Industry Association of America, says in the podcast.

“Unfortunately,” he says, “this was the best way for people to understand what was legal and illegal.” —Sara Lipka

Categories: Campus-Piracy, Legal-Troubles