At 2:30 today we passed our next mile marker on the highway to trial.  My mom and I met with Debbie in front of the stunning Moakley courthouse, (my deepest compliments to Jung Brannen associates) and waiting.  Isaac appeared and I suggested we seat ourselves outside at the seafood restaurant attached to the courthouse and grab coffee.  The coffee came late, cold, and weak.  We still didn’t know where Professor Nesson is.

Russia Today showed up, commencing interview with me, my mom, and Debbie.  Very obtrusive things, microphones.  Anastacia, the reporter, is shoving the mike right at me and I find it distracting since it’s almost blocking my view of her face, though I imagine it has to be this close for good audio.  She asks me how angry I am and what’s been happening in the case since she interviewed me at Harvard.  I told her they took my computer and now have a copy of every file on it (though have been strickly admonished yes we swear. honors! to not look at what they shouldn’t.)  The webcasting issue had been lost in appeal.

We went inside to find Professor Nesson waiting outside the courtroom with one of our co-counsel’s partners and a voice recorder.  And while it seems a crazy fetish to need to tape everything, this is as much about preserving the record and simple finances as anything.  Transcripts cost $3 a page, twice that if you want them before 30 days. This works out to roughly $120 an hour of a court proceeding.  My team cannot afford this because I cannot afford this.

I finally meet Fern, Professor Nesson’s wife.  As the first item of business Professor Nesson argues at least for the court to audiorecord the proceedings to preserve a record, but Judge Gertner seems reticent to brush against the boundaries of what she might not be allowed to do, especially having been overruled by the Appeals court last time she made a ruling on recording.

The issues at hand are:
1. Our counterclaim on abuse of process (our suing the plaintiffs)
2. Our adding the RIAA to our counterclaim
3. Our amending our original Answer to include a “fair use” defense.
4. Our challenge to the damages as excessive.

Tim Reynolds and Dan Cloherty argue for Sony et. al.  Professor Nesson for me.

Over the course of the hearing, Reynolds argues confusion at our “abuse of process” and “fair use” claims, not really knowing what we meant, arguing we had no factual evidence for the former.  Nesson came back saying he hasn’t been granted any discovery (discovery is the process of each side asking for evidence) on the counterclaim, but voiced examples of questions whose answers may indeed provide evidence.

When it came down to the issue of fairness, the plaintiffs said that on the four “fair use” criteria, the facts came down against fair use.  Nesson countered, saying that in all the cases he’s seen, “fair use” has never been constricted to evaluation on a simple rubric, since the four criteria are nonbinding, and that fair use has always been ruled as being a legal principle, one which must be decided case-by-case.  The plaintiffs continue to maintain the ludicrous assertion that I’m a commercial downloader because I download in order that I don’t have to pay money.

Speaking of fairness, Nesson invoked background, that I’ve bought countless CDs, that my entire family and I are musical, but the point that hit me, the reminder that he really represents me came next:

(paraphrased) Here’s a teenage kid, raised with his values, exploring what he sees in front of him and what he sees is this music about self-expression, about rebelling, and he sees these artists sharing these ideas.  It’s not about wanting money, or downloading music to sell.  He’s not trying to hurt the artists.  These are artists he loves, who he holds the highest regard for.

And the build within his voice, as his tone grew more emphatic, and gestures of his arm more powerful, I was touched.  This was something I’d never said explicitly but he knew.  And knew to say.  This isn’t his job; this is him.

In fact, the moment the sharing-kid vs. businesses-only-protecting-their-copyrights narrative appeared, I found myself thinking about what Billie Joe, Thom Yorke, or Trent Reznor would think, put into this courtroom, witnessing this.  Witnessing Sony et. al plead about their property, as if they created it.  “Your Honor, we bought these ideas, sell them, and expect no one else to have them.  This isn’t fair.”

When the hearing ended, I exhaled deeply and collapsed onto the railing in front of me.  Goodbyes are said all around.  Charlie exchanges warm regards with Reynolds and Cloherty and the woman from the Department of Justice shakes hands with him.  He proposes a drink at the seafood restaurant on the waterfront.  He is silent.  We sit down.  “Time is on My Side” plays on the radio and I challenge anyone to name the artist.  Charlie asks if I know and I name the Rolling Stones.  Fern chides him for not knowing, saying that he has every Stones album.  We order beer.

Charlie: Okay, let’s go around and you tell me what argument you wanted me to say and I missed.

We rotate, each voicing opinions until the topic seems to evanesce and we’re alternating between telling stories and expressing ideas about the case.  Fern, Debbie, and Isaac have the same prediction as me: Fair use answer will be allowed in some form, counterclaim and related stuff will be turned down.