[FC-discuss] Tenenbaum Day 1: Jury Selection, Reporting by Mark Bourgeois

[Seth Johnson]

(Mark Bourgeois' introduction at bottom.  -- Seth)

> http://recordingindustryvspeople.blogspot.com/2009/07/jury-selection-encompases-first-day-of.html


Monday, July 27, 2009
 
Jury selection consumes first day of Sony v. Tenenbaum

BY MARC BOURGEOIS

Almost the entirety of day one of the Sony v. Tenenbaum trial was
devoted to jury selection. Opening statements will begin tomorrow at
9:00a.m. My updates for this trial will likely be limited to end of
day wrap-ups as I am not permitted to bring any electronic devices
into the courthouse, much less the courtroom, as I lack the needed
credentials to do so.

The morning began with a very brief reading of Judge Gertner's order
on the summary judgment motion that was entered early in the morning.
She also stated that any constitutional questions raised by the
parties in regard to damages would be a question saved for post trial,
if and when there is a damage award.

The parties then discussed timing for each side to present their case,
as the judge has announced that the trial should last one week. Judge
Gertner stated that she wanted the trial to move expeditiously, but
would not impose specific time limits on either side. She wants to
have the case to the jury by the end of the week, but deliberation
could go to next week.

Prof. Nesson then asked the court about whether or not the jury would
be instructed on the range of damages as is stated in the copyright
act, and stated he would like the jury instruction not to include the
specific range, but rather ask that the jury if it awards damages
simply be instructed to award damages that are just. Cites Feltner v.
Columbia as his authority for this instruction. Plaintiffs object and
Judge Gertner states that she will take the issue under advisement and
rule before the opening statements, as Professor Nesson has indicated
that the form of the instruction will play in to how he presents his
opening.

Professor Nesson then stated two other objections, he would like to
modify the geography of the courtroom to better present the defense to
the jury, and the issue of Debbie Rosenbaum participating in the case.
The courtroom was slightly modified with the position of the defense
counsel table, and Ms. Rosenbaum is permitted to sit at the counsel
table and assist Professor Nesson.

The jury selection voir dire then began. The voir dire went very
quickly with the group in opening court, with several jurors being
excused for their inability to sit on the case due to unresolvable
scheduling issues. No one claims to have heard, read, or seen anything
about the case and no one claims to know any parties or witnesses to
the case. The selection then proceeded in an adjacent courtroom with
voir dire by the parties, one juror at a time, without the presence of
the remainder of the jury.

This process lasted until about 4:15pm until a panel of 16 was
selected, and each side was allowed 3 peremptory challenges, leaving a
total of 10 jurors to sit on the case. After the jurors were selected
they were sworn in and asked to come back tomorrow morning at 9:00am
for opening statements.

Parties then brought up some issues of their concern prior to opening
statements. Plaintiffs do not wish for Professor Nesson to being up
certain issues that were raised in voir dire that they do not believe
are relevant to the case. Some of these issues include his
representation of Tenenbaum pro bono, references to terms more
appropriate to a criminal proceeding, his personal choice of wardrobe,
and Joel's (as opposed to both parties') right to a jury. Judge
Gertner agrees with Plaintiffs.

The Plaintiffs also bring up the use of demonstrative exhibits in
opening statements. Plaintiffs indicate they do not plan to use any
demonstrative exhibits in their opening statement, but ask to know if
Defendant does. Professor Nesson states that he does have two. One is
in image of the Necker Cube. The other is a box of styrofoam, to which
he intends to liken the image of an album and intends to show breaking
into pieces along with the advent of the internet.

Plaintiffs object to these demonstrations, but Judge Gertner overrules
and explains that the opening statement must have relevance to the
testimony that witnesses will provide, but gives license for counsel
to present how they choose. What these demonstratives will mean won't
be found out until tomorrow.

Judge Gertner then denies Defendant's proposed jury instruction not
listing the statutory range. The range will be available to the jury.

Judge Gertner brought up the issue of the innocent infringer defense.
There was then some discussion between the parties, but the defense
will not be allowed in this case because it was not asserted early
enough in the case.

Judge Gertner then gave an order regarding the testimony which will be
allowed by Johan Pouwelse. He will be allowed to testify as an expert
with regards to the times of appearance of Napster, iTunes, and other
peer-to-peer related services. He will also be able to testify as to
alternative methodologies to those employed by Dr. Jacobson. He will
not be allowed to testify to anything relating to the marketplace for
music or anything else related to economics.

The day ended with Judge Gertner encouraging the parties to move the
case quickly. She specifically stated that she didn't see the need for
the MediaSentry witness, as there isn't an issue as to the fact that
their investigation led to the correct person. Mr. Reynolds for the
Plaintiffs argued that there were other issues to which MediaSentry
would testify about, such as about what exactly was uploaded or
downloaded.

Plaintiffs then offered for the defense the list of the first three
witnesses they will call tomorrow, which are G. Wade Leak (Sony),
Chris Connelly (MediaSentry), and Mark Matteo (Cox Communications)



Docket entry for first day:

    Electronic Clerk's Notes for proceedings held before 
    Judge Nancy Gertner: Jury Trial held on 7/27/2009. Voir 
    Dire begins; 10 Juror's selected and sworn; openings and 
    evidence to begin on Tues 7/28/09 at 9:00am, court 
    adjourned. (lobby conference held re: media/list of jury 
    pool) (Court Reporter: O'hara.)(Attorneys present: Atty 
    Reynolds, Pariser, Cloherty, Burton, Oppenheim, Nesson, 
    Kamholtz, Feinberg) (Molloy, Maryellen) 



[Ed. note. I cannot for the life of me understand why the Judge is
deciding at this time what the jury instruction will allow in terms of
statutory damages. How can she determine that, without seeing what
actual damages have been shown?

Also it sounds like she's decided to allow a free for all on the
opening statements, so the RIAA lawyers will talk about how their
business model is hurting and it's because of all of those "pirates"
out there.

Sounds like I'm not getting wishes numbered 3 and 4 from my wish list
{http://recordingindustryvspeople.blogspot.com/2009/07/my-wish-list-for-mondays-sony-v.html}.

Plus it sounds like the jury selection process was allowed to be the
same kind of charade the Capitol v. Thomas process had been.

I think I'm going to be sick. -R.B.]


posted by Marc W. Bourgeois @ 7/27/2009 05:28:00 PM

--

> http://recordingindustryvspeople.blogspot.com/2009/07/marc-bourgeois-to-cover-sony-bmg-music.html


Marc Bourgeois to cover Sony BMG Music Entertainment v. Joel Tenenbaum
trial in person


posted by Marc W. Bourgeois @ 7/26/2009 05:20:00 PM


Hello everyone,

I'm Marc W. Bourgeois, and I will be providing on-site coverage of the
Sony BMG Music Entertainment v. Joel Tenenbaum trial as was done with
Capitol v. Thomas-Rasset.

I currently work for a Madison, WI based online retailer managing
system and network infrastructure. I've previously worked for the
information technology department at the University of Wisconsin,
Division of University Housing, where a portion of my job
responsibilities included the processing of copyright related
cease-and-desist (DMCA) notifications and the technical aspects
relating to the recording industry pre-litigation campaign targeting
colleges and universities. [I should note that while Joel Tenenbaum
was a college student at the time of the alleged copyright
infringement he was not living in a University operated residence
facility, and the incarnation of the pre-litigation program of which I
was involved had not yet been created.]

While I anticipate my twitter updates may be less frequent during this
trial than the previous, I will also be providing them at:
http://twitter.com/mwbourgeois

Thank you and I look forward to providing readers this first-hand
perspective of events this week.