The Joel Tenenbaum case opened today with a full, slogging day of jury selection, the defense reeling from Boston federal judge Nancy Gertner's last-minute decision to remove Tenenbaum's proposed fair use defense from the closely watched copyright case.

Tenenbaum's hopes of letting the jury determine whether his acts of alleged infringement constituted fair use under the Copyright Act were dashed by an order e-mailed to the parties this morning at 1:37 am, granting the record label plaintiffs' motion for partial summary judgment on the fair use defense. Judge Gertner’s order, handed down less than eight hours before trial got under way, said the fair use defense proposed by Tenenbaum failed because it would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

The court's sound rejection of the fair use defense leaves Team Tenenbaum with an extremely steep uphill climb on the basic issue of whether he will be found liable for committing the acts of copyright infringement of which he stands accused, namely downloading and sharing thirty songs using the KaZaA peer-to-peer network.

Tenenbaum has repeatedly admitted, including under oath at his two days of deposition, that he used KaZaA to download and share songs, and the record labels have mountains of evidence to confirm what Tenenbaum admits: testimony and computer forensic evidence from MediaSentry (anti-piracy investigators retained by the plaintiffs), Cox Communications (Tenenbaum’s ISP on August 10, 2004, the date of the detected sharing), and their expert, Dr. Douglas Jacobson of Iowa State University. Indeed, given Tenenbaum’s own admissions, Judge Gertner questioned today whether the MediaSentry testimony was even needed for the plaintiffs to prove Tenenbaum’s infringement.

The real action will be in determining the amount of damages, which could range from a low of $750 per work all the way up to $150,000 per work—potentially $4.5 million—in the case of willful infringement. Judge Gertner said again today that, should the jury award statutory damages, she intends to hold a separate post-trial hearing to determine whether any such award is so excessive as to violate the US Constitution's guarantee of due process of the law.

Day of torture



Nearly the entire day was consumed with what Gertner termed "one very long, very tortured day of jury selection." It started with jurors filling out forms asking basic biographical information, as well as their, and their friends' and family members', experiences with the use of peer-to-peer software like KaZaA and Limewire to obtain and distribute music. After the attorneys had the chance to sift through the completed forms, the judge, attorneys, clerks, and spectators all moved to the adjacent courtroom, while the potential jurors waited in the original courtroom to be called next door for their seriatim grillings by each side, as well as by Judge Gertner herself.

The dragged-out process stood in stark contrast to that conducted by Minnesota federal judge Michael Davis, who presided over the recent retrial of Jammie Thomas-Rasset, conducted voir dire en masse, and wrapped the whole thing up in about an hour and a half.

The questions from label attorney Matt Oppenheim were conventional: "Do you have an opinion about record companies?" "Have you heard about the record companies' suits against individuals accused of copyright infringement?" "Do you believe they are justified in enforcing their rights against those who infringe their works on the Internet?"

The questions from Tenenbaum's lead counsel, Harvard Law School professor Charles Nesson, were, to no one's surprise... not so conventional. Nesson began his questioning of many of them by asking whether they were "offended" by his decision to wear a Steve Jobs-esque black turtleneck (with blazer) in lieu of a business suit. "I’m a teacher in my normal life," explained Nesson. "This is what I wear every day."

Nesson also questioned potential jurors about their views on marijuana decriminalization, even asking one woman how she would feel if she heard during the trial about Nesson's own (admitted) pot-smoking. She said she didn’t mind, though Judge Gertner quickly made clear that the trial would not delve into that subject.

The parties sparred repeatedly about whether the half-dozen or so potential jurors who admitted to using peer-to-peer networks to obtain music without paying for it should be excluded from the jury for cause. Judge Gertner repeatedly sided with the plaintiffs, who objected to the presence on the jury of those who essentially admitted to the same activity of which Tenenbaum, a 25-year-old Boston University graduate student, stands accused. Nesson complained that removing such P2P users from the juror pool deprived Tenenbaum of his constitutionally guaranteed right to a trial by a jury of his peers.

"By doing that, she excluded a whole generation," Nesson lamented in a post-voir dire interview. But, he added, "I think this is a jury I can talk to."

Also excluded from the jury was the labels' worst nightmare: a 40-ish woman who had done graduate studies in theology and library sciences and said she "definitely ha[s] a bias against record companies. Information should be free." Team Tenenbaum was also able to toss its least-favorite juror: a 60-ish man who proclaimed that "downloading music is almost like stealing," and added, "If you go on the Internet and get it, you should have to pay for it." Nesson accused him of "bias," and Judge Gertner—over the objection of plaintiffs' counsel, who argued that the man was stating nothing more than that people should obey the law—expressed concern about the "moral opprobrium" he was attaching to copyright infringement.

The process ultimately resulted in a jury of five men and five women, all drawn from Boston's suburbs. According to a list provided by the court (following a friendly in-chambers conference among Judge Gertner, counsel from both sides, and your humble correspondent), the jury consists of the following:

Certified nurse assistant; F; Somerset Pet trainer/secretary; F; Plymouth Physician; M; Wayland Bank administrator; F; Quincy Registered nurse; F; Westford Plant quality assurance manager; F; Mansfield Associate director; M; Milton Salesman; M; Milton Medicinal Chemist; M; Wakefield; Business development manager; M; Tewksbury

Exploding Styrofoam and Necker Cubes



Opening statements begin Tuesday morning at 9:00 am. Plaintiffs asked for 20-30 minutes, Nesson for 40. Nesson gave a brief preview of his opening, at which he plans to use demonstratives, including a Styrofoam box that he said will be used "to show the difference between atoms and bits, which is central to our case."

"We will object to the exploding Styrofoam," deadpanned plaintiffs' attorney Tim Reynolds, though his plea was rejected by Judge Gertner, even as she cautioned Nesson that this was to be an opening statement, not an argument. Nesson also said he plans to display a poster of a “Necker Cube." Asked why, he would only say, "Tune in tomorrow."

And we shall, to hear opening statements and the plaintiffs' first three witnesses: Sony attorney Wade Leak (who famously testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate), Chris Connelly of MediaSentry, and Mark Matteo of Cox Communications.

Judge Gertner promised that the jury would get the case by Friday, though deliberations could potentially stretch into next week.

Ben Sheffner is an attorney specializing in copyright law. He has previously represented entertainment companies including Warner Bros. Records and Twentieth Century Fox, but has no current financial ties to any of the parties in this case. Ben had the chance to experience copyright law from the user perspective while serving as a lawyer for John McCain's presidential campaign in 2008, and he now blogs about copyright issues at Copyrights & Campaigns. He is covering the Joel Tenenbaum trial this week in Boston for Ars Technica.