I spent today in the District Court of Massachusetts watching opening statements in the case of Sony BMG Music Entertainment et al v. Tenenbaum. The case is an incredibly straightforward one. Joel Tenenbaum was caught by the RIAA downloading and distributing mp3 files online in violation of copyright. However, the underlying facts of the case have become a rallying cry for those who are using any shot they can get at the recording industry.
The opening statements were pretty much what one would expect at a trial like this. The Plaintiffs’ attorney argued that file sharing is illegal for a reason: it hurts the record company’s only source of income. Record companies sell records. And when their records are given away and not sold, they don’t have the resources to develop new and interesting artists. They had the law on their side, but were worried that a jury not sympathetic to the needs of a corporate behemoth, so they emphasize the human side of their claim.
The Defendant’s attorney, Charles Nesson, took a more peculiar approach. Nesson was facing a legal brick wall in terms of the statutes, but has a fairly sympathetic client. Joel Tenenbaum is a graduate student in physics at Boston University who downloaded some music off the Internet. A jury is bound to feel badly for him, especially if they share the general sentiment that this sort of behavior is to be expected of younger people and not an especially wrongful act.
Nesson seems to be combining his client’s relatively sympathetic position with some peculiar theories of copyright law. For starters, there was his brief to the court that came dangerously close to arguing that downloading music from the Internet is fair use per se. Quoth attorney Nesson:
Joel represents the digital generation and its views. He personifies millions upon millions of our sons and daughters born into the networked world. In high-school, he did the things that school kids do, worked at MacDonalds to earn money for a speaker for his car, bought CDs, downloaded and shared songs p2p with Napster and KazaA, shared and discussed songs with friends, face to face and online.
[...]
The issue of fairness that is raised by this case is a novel one, arising out of the new digital era. The Plaintiffs prosecute Joel Tenenbaum premised on the theory that Congress made it unlawful for kids enjoy bits they find for free in cyberspace.
In essence, Nesson’s entire argument in this case amounts to “Pity the poor child, don’t let the big bad media company bully this little angel.” And it showed in his performance in court.
Nesson peppered his opening statement with emotionally charged phrases like “sharing with friends” and “kids who love music.” He tried to distinguish file sharing from “breaking and entering,” even going as far as to compare file sharing to Wikipedia.
Nesson also tried to instruct the jury on the holding of a prior copyright law case before the judge reeled him in (pro tip to budding lawyers: only the judge instructs juries on the law). After opening statements, Judge Gertner pointed out several more objection-worthy missteps in Nesson’s opening, noting that she would not jump in and save the parties from their own failures to object.
But during the examination of the first witness, Judge Gertner again had to step in to keep things in line. Nesson’s cross-examination of Plaintiffs’ witnesses was, to put it as one witness did, “unusual.” Unusual is putting it mildly. Nesson’s cross-examinations were of questionable relevance, and he repeatedly kept asking witnesses questions about things they’d already stated they didn’t know anything about. His questions ranged from the economics of file sharing damages to whether the defendant “led a principled life.” On occasion, he even asked a question relevant to the case.
(This isn’t to say Plaintiffs’ attorney was perfectly on point. He kept trying to get economic information out of a record company’s assistant general counsel despite not ever qualifying him as an expert or even suggesting to the court that he had any reason to understand the economics of file sharing.)
From what I could see, it’s highly likely that Nesson is merely building a case for an appeal, as Nesson should know that the law as it currently stands almost makes Defendant’s loss a foregone conclusion. Accordingly, he’s better off hoping that he can get the First Circuit to change the law rather hoping that he can convince a jury to just ignore their jury instructions and find for the defendant because he’s a nice guy.
All in all, this is going to be an interesting case to see unravel, and the narratives of David against Goliath and Lawfulness against Lawlessness battle for dominance in the minds of the jurors. With the case expecting to go another two days before the jury receives it, there will certainly be more chances for the attorneys to show why their clients deserve what they’re asking for.
This truly is a case of David v. Goliath, but Mr. Traina has mis-identified Goliath. Three times in this report, we read that the Judge stopped the defendant from arging his case the way he wanted to — “only the judge instructs juries on the law”! Hmmmm… why? Why not have both sides AND the judge talk to the jury about the law? Are they not supposed to be people who will assess what they are told and make reasonable conclusions?
But no — the judge “had to step in”, HAD TO! Otherwise, these low-life, know nothing, ordinary people might have a say about the substance of the case. We can’t have that in America! This group is only called a “jury” because of tradition; it’s to be tightly leashed and commanded about what they can decide and on what basis.
PiperTom:
Juries exist only to determine what’s in dispute. The law should never itself be in dispute at the trial level. Without a set law that the defendant violated, there can be no trial.
[...] Tenenbaum file sharing case, which I covered the first day of, evoked the same problematic philosophy. Many anti-RIAA advocates rationalize rampant music [...]