p2pnet news view P2P | RIAA:- From all appearances, they may as well pack up and go home.

That was the sense of things at the end of Day One of the trial of the multi-billion-dollar corporate music industry against Boston student Joel Tenenbaum, and the team of Harvard student lawyers, led by a professor, who are defending him.

Yesterday, “the judge takes the issue of fairness away,” said the professor, Charles Nesson, on Twitter.

Today, he hasn’t posted.

Nor are there Twitter updates from Joel and it’s, “now looking like Tenenbaum’s legal strategy has been destroyed even before the trial is heard,” said The Inquirer at the end of Day One.

“Boston federal judge Nancy Gertner made a last-minute decision to remove Tenenbaum’s proposed Fair Use defence which was really all he had going for him in the case,” it said.

Because Gertner allowed the labels’ demand for a summary judgment,  ruling the Tenenbaum team had, “put no facts into evidence on which the Court could rely; his opposition briefs are not accompanied by any affidavit, expert report, deposition testimony, or other evidence of the kind described by Rule 56(e)”.

Marc Bourgeois provided on-the-spot coverage for Ray Beckerman’s Recording Industry vs The People in the recent Jammie Thomas-Rasset trial, and he did the same for Sony v Tenenbaum, writing »»»

Almost the entirety of day one of the Sony v. Tenenbaum trial was devoted to jury selection. Opening statements will begin tomorrow at 9:00a.m. My updates for this trial will likely be limited to end of day wrap-ups as I am not permitted to bring any electronic devices into the courthouse, much less the courtroom, as I lack the needed credentials to do so.

The morning began with a very brief reading of Judge Gertner’s order on the summary judgment motion that was entered early in the morning. She also stated that any constitutional questions raised by the parties in regard to damages would be a question saved for post trial, if and when there is a damage award.

The parties then discussed timing for each side to present their case, as the judge has announced that the trial should last one week. Judge Gertner stated that she wanted the trial to move expeditiously, but would not impose specific time limits on either side. She wants to have the case to the jury by the end of the week, but deliberation could go to next week.

Prof. Nesson then asked the court about whether or not the jury would be instructed on the range of damages as is stated in the copyright act, and stated he would like the jury instruction not to include the specific range, but rather ask that the jury if it awards damages simply be instructed to award damages that are just. Cites Feltner v. Columbia as his authority for this instruction. Plaintiffs object and Judge Gertner states that she will take the issue under advisement and rule before the opening statements, as Professor Nesson has indicated that the form of the instruction will play in to how he presents his opening.

Professor Nesson then stated two other objections, he would like to modify the geography of the courtroom to better present the defense to the jury, and the issue of Debbie Rosenbaum participating in the case. The courtroom was slightly modified with the position of the defense counsel table, and Ms. Rosenbaum is permitted to sit at the counsel table and assist Professor Nesson.

The jury selection voir dire then began. The voir dire went very quickly with the group in opening court, with several jurors being excused for their inability to sit on the case due to unresolvable scheduling issues. No one claims to have heard, read, or seen anything about the case and no one claims to know any parties or witnesses to the case. The selection then proceeded in an adjacent courtroom with voir dire by the parties, one juror at a time, without the presence of the remainder of the jury.

This process lasted until about 4:15pm until a panel of 16 was selected, and each side was allowed 3 peremptory challenges, leaving a total of 10 jurors to sit on the case. After the jurors were selected they were sworn in and asked to come back tomorrow morning at 9:00am for opening statements.

Parties then brought up some issues of their concern prior to opening statements. Plaintiffs do not wish for Professor Nesson to being up certain issues that were raised in voir dire that they do not believe are relevant to the case. Some of these issues include his representation of Tenenbaum pro bono, references to terms more appropriate to a criminal proceeding, his personal choice of wardrobe, and Joel’s (as opposed to both parties’) right to a jury. Judge Gertner agrees with Plaintiffs.

The Plaintiffs also bring up the use of demonstrative exhibits in opening statements. Plaintiffs indicate they do not plan to use any demonstrative exhibits in their opening statement, but ask to know if Defendant does. Professor Nesson states that he does have two. One is in image of the Necker Cube. The other is a box of styrofoam, to which he intends to liken the image of an album and intends to show breaking into pieces along with the advent of the internet.

Plaintiffs object to these demonstrations, but Judge Gertner overrules and explains that the opening statement must have relevance to the testimony that witnesses will provide, but gives license for counsel to present how they choose. What these demonstratives will mean won’t be found out until tomorrow.

Judge Gertner then denies Defendant’s proposed jury instruction not listing the statutory range. The range will be available to the jury.

Judge Gertner brought up the issue of the innocent infringer defense. There was then some discussion between the parties, but the defense will not be allowed in this case because it was not asserted early enough in the case.

Judge Gertner then gave an order regarding the testimony which will be allowed by Johan Pouwelse. He will be allowed to testify as an expert with regards to the times of appearance of Napster, iTunes, and other peer-to-peer related services. He will also be able to testify as to alternative methodologies to those employed by Dr. Jacobson. He will not be allowed to testify to anything relating to the marketplace for music or anything else related to economics.

The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn’t see the need for the MediaSentry witness, as there isn’t an issue as to the fact that their investigation led to the correct person. Mr. Reynolds for the Plaintiffs argued that there were other issues to which MediaSentry would testify about, such as about what exactly was uploaded or downloaded.

Plaintiffs then offered for the defense the list of the first three witnesses they will call tomorrow, which are G. Wade Leak (Sony), Chris Connelly (MediaSentry), and Mark Matteo (Cox Communications)

Posted Ray »»»

I cannot for the life of me understand why the Judge is deciding at this time what the jury instruction will allow in terms of statutory damages. How can she determine that, without seeing what actual damages have been shown?

Also it sounds like she’s decided to allow a free for all on the opening statements, so the RIAA lawyers will talk about how their business model is hurting and it’s because of all of those “pirates” out there.

Sounds like I’m not getting wishes numbered 3 and 4 from my wish list.

Plus it sounds like the jury selection process was allowed to be the same kind of charade the Capitol v. Thomas process had been.

I think I’m going to be sick.

Said Mike Masnick on TechDirt »»»

We’ve been careful to avoid covering most of the insanity around the Joel Tenenbaum trial from the last few months, as it became increasingly clear that the whole thing was a giant mess — culminating in the plan to try to defend Joel’s file sharing as “fair use.” Pretty much everyone told the legal team that such a defense would never fly and it was a huge mistake. It’s entirely unclear why Charlie Nesson kept pushing it. It should come as no surprise, then, to find out that the judge has rejected a fair use defense. One can hope that Nesson and crew actually have a better defense ready, but with the judge rejecting the planned fair use defense just hours before the trial began, you have to wonder if “Team Tenenbaum” has a real strategy at all. Hopefully it’s just been hidden from all of us, because there are significant legal points that can be attacked, but to date Nesson seems to have focused on long shots, rather than the real legal questions at play.

Not only that, but it appears that even Judge Gertner (who originally approached Nesson about representing Tenenbaum, but had to scold him multiple times and threaten sanctions) seems to recognize that if Nesson and Tenenbaum had thought it out, there might actually have been ways to make a fair use claim stick. But, instead they failed to make a compelling case and (as Gertner says): “propose[d] a fair use defense so broad that it would swallow the copyright protections that Congress has created.” So what would such a fair use defense entail?

To be sure, this Court can envision certain circumstances in which a defendant sued for file-sharing could assert a plausible fair use defense. Indeed, an amicus brief previously filed in this consolidated action by the Berkman Center at the Harvard Law School (on which Defendant’s counsel was a signatory) outlined some of those circumstances–for example, the defendant who ‘deleted the MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased.’ The Court can also envision a fair use defense for a defendant who shared files during a period of time before the law concerning file-sharing was clear and paid outlets were readily available.

The advent of the internet in the late 1990s threw a number of norms into disarray, offering sudden access to a wealth of digitized media and giving the veneer of privacy or anonymity to acts that had public consequences. At the beginning of this period, both law and technology were unsettled. A defendant who shared files online during this interregnum but later shifted to paid outlets once the law became clear and authorized sources available would present a strong case for fair use. It might matter, too, who the defendant shared files with–his friends, or the world–as well as how many copyrighted works, and for how long.

But the Defendant has offered no facts to suggest that he fits within these categories. He is accused of sharing hundreds of songs over a number of years, far beyond the infancy of this new technology or any legal uncertainty.

As with the Jammie Thomas case, it makes you wonder how things would have been different with better legal counsel. Either way, unless there are any major developments, we’re unlikely to talk about the day-to-day events of this trial until a ruling is made.

On that, “Now Tenenbaum has to defend himself from claims that he committed copyright infringement on thirty songs on the peer-to-peer filesharing service KaZaA,” says Nick Farrell in The Inquirer, adding:

“His defence looks to be a bit tricky because he has already admitted using KaZaA to download and share songs.

“The music industry will not even have to call controversial Media Sentry testimony to prove infringement.

“With this decided the question will then come down to how much cash Tenenbaum should pay to the plaintiff RIAA member companies. This could be between $750 per tune all the way up to $150,000 for each track or a total of $4.5 million.

“Judge Gertner seems to be thinking that this case will be where the law on penalties for so-called music ‘piracy’ will be decided. She has said that should the jury award statutory damages, she intends to hold a separate post-trial hearing to determine whether any such award is so excessive as to violate the US Constitution’s guarantee of due process enshrined in the Bill of Rights.”

Stay tuned.

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

takes the issue of fairness away – RIAA vs Joel Tenenbaum on Twitter, July 27, 2009
The Inquirer -Tenenbaum ‘piracy’ case is all over bar the shouting,  July 28, 2009
Sony v Tenenbaum – Jury selection consumes first day of Sony v. Tenenbaum, , July 27, 2009

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This entry was posted on Tuesday, July 28th, 2009 at 8:06 am and is filed under P2P, RIAA News. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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