July 27th, 2009

Bearing Witness, or Not

Speaking of family and defending the truth, the Joel Tenenbaum case begins today. And it’s looking like it’s not going to be the trial that Charlie was hoping it would; instead it will be, no surprise, the judge’s trial.

Judge Gertner made a series of rulings this weekend, including one at 1:37 this morning — how’s that for timing? — essentially striking down Charlie’s push for a defense based on the notion of fairness and couched in the cultural practices of the digital age. Along these lines, she struck proposed witness John Palfrey; she had already ruled against me (on grounds of tardiness) and John Perry Barlow (on grounds of the “philosophical” nature of his testimony).

Here’s a nice piece published in today’s Guardian in which Joel explains himself. One hopes that a jury of his peers will at least be moved to substantially limit the damages sought by the RIAA (now up to $4.5M for sharing 30 songs). It’s pretty clear that this would be the outcome hoped for by Gertner, and it would constitute a defeat of sorts for the RIAA, who have no doubt already spent hundreds of thousands if not millions of dollars on this case; it would also, from Charlie’s perspective, constitute a defeat for him & Team Joel, who are seeking no less than a nullification of the charges.

I’m sure that Charlie will find a way to make his case nonetheless, and that he will continue to register his unhappiness at the various ways his attempts to open this case up have been prevented. If Joel & Charlie lose this case, there will be a number of issues relevant to appeal. More important, I believe Charlie & Joel have made large gains in the court of public opinion. Whether or not the judge considers this to be a question of fairness, a lot of other people (increasingly) do. Whatever the verdict, I hope it offers yet another chance to revisit, in the public conversation, the question of sharing songs (non-commercially) and the role that a few large corporations should play in (limiting) our public culture — never mind the question of commercial lawfirms bullying people with far fewer resources.

For my part, I stand by my report. And I find the whole buying-a-song idea stranger and stranger by the day. The process of getting involved in the case — both as a possible expert witness, and in the many informal conversations I’ve had about it — has caused me to reshape my current research project toward something like, “Peer-to-Peer Music Industry: Musical Production, Circulation, and Value in the Digital Age.” I need a snappier title than that, especially since both “peer-to-peer” and “industry” seem like such freighted terms. Thanks to all for helping me continue to think through this stuff.

[Update: Ruling this morning that statutory damages must be assessed at $750/song at a minimum — rather than, say, $0 — Judge Gertner has further removed the jury’s ability to support Joel on grounds of fairness. (Unless the jury actually decides to nullify?)]


  • 1. John  |  July 27th, 2009 at 11:46 am

    Hey Wayne,

    I’m wondering if you have any comments on the settlement between Jackson Browne and the RNC/McCain Campaign. http://hosted.ap.org/dynamic/stories/U/US_PEOPLE_BROWNE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

  • 2. wayneandwax  |  July 27th, 2009 at 2:02 pm

    as i noted over on your blog

    I def lean pretty copylef, but I think the law is correct here in failing to protect “moral” rights, as they’re known (and commonly protected) outside the US. These guys should get to complain, request, etc., all they like — wage a battle in the court of public opinion, by all means — but unless it’s a case of commercial exploitation (as the McCain campaign might have been shown to be, but I dunno) I think this sort of thing should be safe as fair use, much as one might object to their politrickal recontextualization.


I'm a techno-musicologist, internet annotator, imagined community organizer.

I left my <3 in the digital global, but I reside in Cambridge, MA, where I'm from.

I represent like that.

wayne at wayneandwax dot com

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