The Hearing (another perspective)

By chance, I meet Isaac on the T to the courthouse. We aren’t overly enthusiastic– the weather is bleak and I am exhausted from commencement ceremonies the day before.

Seen from the parking lot, the courthouse is not welcoming. The facade is a brick wall. I feel like we’re tiny eggs trying to smash the brick wall. Also, it is summer and most of the team is away. There are only a few of us. I know we have the support of thousands, tens of thousands, perhaps millions of people, but today I feel very alone. I can’t imagine how Joel feels. He is such a cheerful and optimistic person, which is probably why he has managed to remain sane throughout this entire process.

Joel is interviewed by Russia Today in front of the courthouse.

The interior of the courthouse is beautiful. “Justice is but truth in action- Louis Brandeis” is inscribed in the stone at the base of a circular atrium. I wish that were true. Sometimes it feels like truth is unimportant, or that truth is abused because it can be.

We ride in a marble paneled elevator to the third floor. We are in courtroom no. 2. Unlike the facade, the back of the courthouse is a sweeping curve of glass. The view of the harbor and the architecture is beautiful. “Charlie says this represents the openness of the legal system,” Joel says. Maybe he means “should represent.” So far in this case, we’ve been working so hard to make things open, but our motion to allow the hearing to be webcast was denied. If anyone not present at the trial wants to know what was said, they have to buy a transript at $3 a page. I wish I could have a computer, but I’m not allowed. All I have is a small rectangular reporter’s notepad.

Prof. Nesson is sitting outside of the courtroom. He has on his trademark black turtleneck and is smiling. His smile always puts me at ease. He has this ethereal smile, an expression that transcends time and place. I’ve seen the Mona Lisa; she is overrated. This is the true mystical smile. I wonder what he is thinking.

The courtroom is small, shiny with new furnishings. Plaintiff lawyers are already seated on the left; someone from the Department of Justice is also there. “Daniel Cloherty is like Matthew McConaughey of the legal world,” Joel whispers. Cloherty is one of the plaintiff lawyers. It’s such a shame that someone so good-looking has to be on the other side. I wonder if he truly supports the RIAA or if he’s just being a good lawyer and representing his client. If it’s the latter, I wonder how he sleeps at night. I couldn’t. (But then, that’s why I’m not a lawyer. I love law, but am one of the few students on the team who are not lawyers.)

Sketech of the courtroom

We have the table on the right. Prof. Nesson and Debbie sit there. The rest of us are behind the bar. A couple of Joel’s friends have showed up and Fern Nesson is there too. Joel’s friends are nervous. Isaac nibbles at his fingertips. There are 18 people in the audience; one is a reporter from the AP.

The hearing starts a little late. Judge Gertner swishes in with her black judicial gown and a bright purple and red scarf knotted around her neck. Her charisma floods the room.

“While the court of appeals and Supreme Court can record and make available audio recordings, I apparently cannot,” she says, denying our motion for an audio recording. “May I then ask that the court record the hearing for its own archive purposes?” Prof. Nesson asks.
“There are things beyond imagining in this case. I don’t have options”, Judge Gertner says. “You have shown a light on this issue but I am a lowly district court judge and I am struck,” she adds. I wince. It is not comfortable to be listening to a judge speak such of herself

We proceed to address the several issues at hand. We first talk about whether Joel is permitted to amend his answer. The plaintiffs,  of course, oppose. Tim Reynolds speaks. He says our claim about their abusive process is speculative, not factual. I think of Joel’s 9-hour deposition (in which the plaintiffs tried to refuse Prof. Nesson’s bathroom breaks) and telephone calls that Judie Tenenbaum received at 6 a.m. and 11p.m. That seemed pretty abusive to me. Maybe I’m missing something.

“Are you saying that the law allows plaintiffs to intimidate users to settle?” Judge Gertner asks.
“But it falls into the law,” Reynolds says. “We’re seeking damges that are well within the copyright laws.”

Prof. Nesson responds with what Judge Gertner later comments as an eloquent speech. “They unleashed the hounds,” Prof. Nesson says, “Their objective is to hang Joel’s head on a post and they move in with that message to a lobbying campaign.” Sitting next to me, Joel’s friend shudders. I imagine Joel’s head on a post. It is disturbing.

“Congress enabled them to do that,” Judge Gertner says. “The groundwork, the concept of suing is part of the Congressional plan.”
“If federal courts have no power to protect themselves from abusive process, it’s utterly unehtical,” Prof. Nesson argues. “The idea that the federal court is powerless runs dead against what a federal court should be. Thousands of lawsuits are clogging the system.”
Judge Gertner seems to agree with Prof. Nesson, again pointing out that Congress is allowing the RIAA to do what they do. “There are many times I say, ‘Do you want to process this?’” she says, noting that it’s happened thousands of times.

We move on to the issue of Fair Use. Plaintiffs argue that Joel’s case doesn’t apply to fair use and that it should not be an issue because we only raised it recently. Reynolds says that Joel had years to bring up fair use; Prof. Nesson points out that Joel only had a lawyer since late last year. It is clear that plaintiffs are annoyed by the extra time/research required to argue fair use. If fair use is brought as a factor into the case, they would have to conduct further discovery. “There is no reason for any further discovery,” Reynolds says. I don’t understand. If there is something that needs to be discovered, why shouldn’t we discover it?

Reynolds goes on. He says that Joel’s interest was private and therfore commercial and that there are no (previous) cases that show that downloading songs was fair use. I feel like saying, “DOH, of course there were no prior cases because you bullied everyone into settling because going to court would cost them more!”

Prof. Nesson points out that the copyright laws weren’t made to consider non-commercial users like Joel. He says that fair use is a principle of fairness and something that a jury should decide. He also points out that the recording labels are not going after the people who uploaded the songs to make them available and that in “those days” a lot of the songs floating around on P2P networks were in fact put there by the studios.

I totally agree with Prof. Nesson. If it were today, I would not say that Joel’s downloading is fair, but this was 7 years ago– before there were iTunes or other legitimate purposes of obtaining music digitally. It was a short timeframe– a transitional, chaotic period of a few years when the Internet made things go out of control– not just economically, but culturally too. The RIAA says that Joel stole music, but it wasn’t really like that. Rather, it was like a period when the bank vaults were suddenly flung open; someone went in, took the money, and strew it all over the street. Could you really blame someone for picking up a couple bucks?

It is raining outside when we leave the courthouse. Strangely, my heart is lighter. I am happy, because even if the worst case scenario unfolds I know it’s not going to be because we are wrong. The law was made to protect people, but someone found a loophole and decided to abuse it. Even if plaintiffs win in the courtroom, history will forever remember them as losers. Hopefully, we have started what will probably be another long fight in getting Congress to change the copyright act. And as Judge Gertner says, we have brought to light the issue of webcasting, reinterpreting “public access” in the age of the Internet. Brandeis was right all along. “Justice is but truth in action.”

But action, in the meantime, can be weary. Judie has to drive back to Providence. Debbie has replaced her heels with  flipflops and heads to the airport. Without an umbrella, I go home in the rain.

-yvette wohn