Joel Tenenbaum’s trial diary: Part one
The John Joseph Moakley United States Courthouse in Boston, Massachusetts is a marvel of modern architecture. The design places emphasis on hopeful transparency and features stone-engraved quotations evoking notions of freedom and equality.
On the Monday morning of my trial, I met my mother (along with my spokeswoman Debbie, and my defence lawyer professor Charles Nesson) outside the courthouse, and we stepped inside. The room had high-tech monitors for the 16 chairs where the jury sat, an overhead camera and hidden cameras built into fake law books … but no windows to the outside. Is this a reminder of the technological transparency that had been blocked a few months earlier? After all, the Recording Industry Association of America (RIAA) fought to overturn judge Gertner’s decision that the trial be webcast.
Once inside the courtroom, the trial began. Judge Gertner stated that, as an unabashed night owl, she had issued a ruling last night. “Very late last night,” she added. At 1.37am, she had stripped us of our “fair use” defence. A jury wouldn’t even be allowed to hear it. Our defence was now about convincing the jury that the fine for a song shouldn’t be several thousand times its worth on iTunes.
As discussion of procedure continued, I saw a list of names on the defendant’s table. I realised that this assortment of unfamiliar titles and occupations was the list of 10 citizens who would decide my fate. The jurors were each brought in to the adjacent courtroom for questioning, with the goal of sniffing out inappropriate bias. Each person meekly approached a long table where we were all seated.
Almost immediately, the contrast was evident between my attorney, the passionate law professor, and the RIAA’s lead attorney, Matthew Oppenheim, a longtime corporate lawyer who proudly lays claim to shutting down Napster. Oppenheim seemed to be running a charm offensive: “Good morning, [grin] I’m Matt Oppenheim, thank you for being here. Though this is my job, I recognise that this is a civic duty for you, and we appreciate you being here [grin]. I’d like to start by asking you a few questions.” Nesson, on the other hand, would say, “Hi, I’m Charles Nesson”. He would then pause, look the potential juror in the eye, and ask, “What’s your passion?” or “What kind of music do you like?” Surprised at the question, each person would begin sheepishly, then answer proudly and passionately. Responses ranged from “I like an eclectic mix of music” to “Oh, everything! Well, everything but country”. I found myself inspired by how many people simply and sincerely said that their passion was their “family” or their “two beautiful daughters”.
Oppenheim’s questions were more conventional: “Do you have any opinions about record companies?” and “Do you think record companies should have the right to enforce their copyrights?” Some people were well-versed in the debate and had even talked to their kids about downloading – they were dismissed for having bias against the record companies. Other people were also dismissed because they had downloaded music themselves. The result left us with a chemist, a pet trainer, a nurse assistant, a business development manager, and others with nothing in common but me.
Judge Gertner was adamant that the case be finished by Friday. We had offered to split the week in half; the plaintiffs disagreed, saying it was “impossible” for them to present their case in an equal share of time. The result was to split it on the basis of time “needed”: three days for the plaintiffs, a half day for us. I started to worry about being called, assuming it would happen the next day.
Read part two of Joel Tenenbaum’s trial diary tomorrow.
Joel:
Thanks for posting this account. It’s very interesting.
From your description of your attorney’s demeanor, it sounds like he might benefit from some charm lessons. If you want people to trust you, you shouldn’t surprise them or make them feel sheepish, even for a few moments.
Did your side dismiss any potential jurors? If so, what was the basis?
Also I’m wondering how many jury candidates were asked if they had illicitly downloaded music, and how many answered in the affirmative.
Law Student, unfortunately somewhere in the editing process someone changed
“Oppenheim seemed to be running a repeating politeness program”
to
“Oppenheim seemed to be running a charm offensive.”
without my knowledge, which may have better conveyed what I meant. I don’t mean to give the impression that Charlie was unlikeable to the jurors, but that he was more real in a palpable way.
Best of luck with your case mate! Keep us updated on what happens. Don’t let them bastards win!!
Joel:
OK then, Charlie Nesson might benefit from politeness lessons.
Oppenheim’s introductory statement to each jury candidate might have seemed insincere to you, especially after you had heard it more than a dozen times. But remember that each candidate heard the statement only once. I’m sure that most of the jury candidates felt that Oppenheim appreciated their efforts.
By contrast, Nesson, who seemed more real to you, may well have antagonized the candidates.
I don’t know; I wasn’t there. I’m just going on your account. Again, I am grateful that you posted your observations. I know this has been difficult for you. Best of luck.
They should fine the musicians for using the copyrighted A above middle C (440 Hz) in all their work…. to the tune of $65,000 per occurrence.
The only juror I heard anything from said this of Charlie:
“He was very interesting. It would be fun to sit down and talk with him. There was a minefield of facts he had to negotiate. He approached it in the best way he could. He was very persuasive.”
That’s the thing about Charlie I can’t possibly convey through writing - he simply and unabashedly is who is and my experience has been that people find this endearing. As for my opinions about Oppenheim and Reynolds, I assure you they were not based on the voir dire process alone, where one would expect repetition. I had five days to observe everyone in their native habitat
I read you’re going to school to be a Doctor, that’s a profitable, well respected career, but knowing now what I didn’t know then it makes perfect sense. How would you like to go into your career knowing the great salary you would make in that field of practice, but someone developed a way people can diagnose, treat & heal themselves online? You wouldn’t make any money because people can “fix themselves” online! Now, how do you think the musicians feel when they lose THOUSANDS TO MILLIONS because people got their new albums free? You wouldn’t want it done to you! I’m glad I was educated about this site & the punishments issued for something we’ve mistaken for innocent! I learned of the consequences & feel bad for everyone who didn’t think deep enough about the downloading of music and now facing life-changing if not destroying consequences. I can’t go into a store and take something without paying for it and sleep well. Right your wrongs, Everyone.
PRAY FOR FORGIVENESS AND DON’T DO IT AGAIN!
Shena: I think Joel is working towards a Doctorate in Physics, not Medicine. Joel is certainly on the road to a well-respected career, but not a profitable one. Unless he becomes a Wall Street “quant”, as many physicists have done recently. But then he would lose my respect!
Besides, skill in medicine is not copyrightable, nor is it downloadable.
In any case, there is a connection between physics and downloading that does make perfect sense. Physicists were one of the first groups of scientists to embrace the internet. The inventor of the Web is a physicist by training. And physicists publish and distribute their research papers on open online forums to a greater degree than any other branch of science. In this sense, Joel is following in a grand tradition. As it happens, I don’t quite approve of his actions, but I can appreciate and even respect his motives.
Hi webmaster - This is by far the best looking site I’ve seen. It was completely easy to navigate and it was easy to look for the information I needed. Fantastic layout and great content! Every site should have that. Awesome job
Thanks for posting this account. It’s very interesting.
From your description of your attorney’s demeanor, it sounds like he might benefit from some charm lessons