July 27th, 2009

Bearing Witness, or Not – Part 2

I went downtown to the Federal Courthouse in the early afternoon, hoping to catch some of today’s opening statements, hoping even to attempt to share some of this public trial with the greater public in relative realtime. But for a number of reasons, I’ve had to return emptyhanded, so to speak.

For one, I had to check my iPhone at the door — or any other electronics for that matter — so it sat in a little cubby just inside the front door of the Courthouse, alongside a few dozen other phones in their own little cubbies, a good number vibrating and ringtoning up a storm. So much for being able to make more public an event that a lot of people appear to have interest in, a global public of a sort, local too.

For two, as it turns out — or as I was told by an opposition lawyer upon entering the courtroom — that as a possible witness, I’m “sequestered” and unable to be present during voir dire (aka, jury selection), which is running long.

Which brings me to my last reason for missing opening statements: they’re not expected to happen until later — perhaps by now (I was told 3:30 about 2 hrs ago) — and I can’t stay that late. Gotta pick up the other daughter at daycare, knamean?

So, so much for that. I did, however, get the scoop from Fern (aka, my mother-in-law, as I’m sure the opposition lawyers and their fanboys would want to remind you). And I have to report that although Charlie sounds in fine form*, Judge Gertner has really pulled the rug out from him in terms of being able to make the case he’d like to make (i.e., to appeal to an empowered jury-of-peers’ judgment about the fairness of the lawsuit). Not only did she throw fairness/fair-use out of consideration (in the wee small hours this morning), she has accepted the bounds of the statutory damages — which, no doubt, inevitably the jurors will be instructed to assess — at a $750/song minimum; apparently, she will not allow them to consider assessing damages at, say, $0.

Oh, and I finally met Joel, who seems like a nice guy.

* About that “fine form,” it appears that one of Charlie’s first questions to a potential juror — Fern said it was his first, but she can exaggerate about these kinds of things — was whether they would be offended to know that he smoked marijuana (or something like that, I paraphrase). Apparently, the opposition raised quite an objection at that, and Charlie went on to explain that he was getting toward a point about the ways that laws can change over time, to move in step with popular attitudes and practices. (The voters of Massachusetts, by a 2/3 margin, decriminalized possession of up to an ounce of marijuana last November.) The judge said she would allow that, but that he should frame the question differently, and not make it about himself. Apparently, he also asked what jurors thought about his classic but informal wardrobe.

Ah, Charlie. Good luck, my dude. My condolences on being so hamstrung. Wish I could hear your opening. Please tweet it later.

[Update: There has been some speculation that, if statutory damages are awarded, Judge Gertner will have a post-trial hearing to explore whether the award is unconstitutional — i.e., so excessive as to violate due process — so it may not be accurate to say that she “has accepted the bounds,” though it is true that she will not allow the jury to find for $0 damages, I’m told. It seems possible that she’s nudging the jury toward massive damages precisely in order to be able to raise the question of constitutionality.]


  • 1. KSmeallie  |  July 27th, 2009 at 6:29 pm


    “The white-haired 70-year-old professor — a champion of the Internet whose campus office sign proclaims him “Eon, dean of cyberpace” — already nettled District Court Judge Nancy Gertner this morning when he asked a prospective juror whether the woman would be offended if she learned that he smoked marijuana.”


    PS – I really enjoyed the expert testimony – songs as shared things. It made some sparks fly on the absurdity of “ownership,” and how its very much assumed in this culture.

    PPS – Back in February I co-authored a Phoenix article on an aspect of this case, namely Nesson’s efforts to webcast the trial. Now THAT would have been a show. http://thephoenix.com/Boston/News/76307-recording-industry-vs-free-speech/

  • 2. wayneandwax  |  July 27th, 2009 at 6:49 pm

    Thanks for this, Kyle. Nice to see it in print. Helluva verb too.

    I’m as disappointed as anyone that the internet has not been admitted to the courtroom, but I rest assured that Charlie will pick up with that issue where this trial leaves off. It’s so sensible, and the courts’ reaction has been way out of step/line/mode.

  • 3. vida  |  July 29th, 2009 at 10:33 am

    I didn’t know smeallie was on the case. Now they’re in for it.

  • 4. isaiah  |  July 29th, 2009 at 10:57 pm

    Thanks, Wayne, for writing about this. Terrifying when it’s this close to home.

    Blessings on Big Charlie for taking it on!


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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