Tenenbaum trial kicks off in Boston, sans fair use

A pre-trial ruling by the judge hearing the RIAA's case against Joel Tenenbaum -- only just pre-trial -- threw the defense's strategy in the copyright-infringement case into serious disarray just seven and a half hours before proceedings kicked off Monday morning.

The defense in Joel Tenenbaum's case, which is led by Charles Neeson of Harvard, has made it clear that they'd be arguing that Mr. Tenenbaum engaged in fair use when he shared on KaZaA the 30 songs at the heart of the trial. The RIAA moved to disallow that line of defense, and Judge Nancy Gertner agreed to think it over... which she did until early Monday morning. Concerned parties received an e-mail with her ruling at 1:37am.

If the defense team was rattled by the late development, observers might not have known it as Neeson gave 'em the proverbial 'razzle dazzle' -- requesting a change in the layout of the courtroom, asking jurors if they were bothered by his black turtleneck ("I'm a teacher in my normal life," Copyrights & Campaign's Ben Sheffner quotes Mr. Neeson as saying. "This is what I wear every day."), discussing his pot use, and promising to bring some styrofoam to court on Tuesday to demonstrate how bits are not like matter.

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Mr. Sheffner, quoting Judge Gertner, summed up the voir dire process as "tortured." In addition to Mr. Neeson's questions, potential jurors were asked if they'd ever used peer-to-peer networks to download music and how they felt about music downloading. Several interviewees giving answers far to one side or the other of the continuum were excluded.

By day's end ten jurors were chosen, and Judge Gertner promises that though the days will be full ones, the five men and five women selected (only eight of whom will actually be called on to deliberate) will get their marching orders on Friday. Interestingly, the judge offered on Monday some guidance as to what her instructions to the jury will include concerning statutory damages -- a highly unusual thing to do before testimony is heard.

The intervening week's proceedings will certainly be a spectacle, but perhaps not in the way some observers might have hoped. Recapping the day's events (ably chronicled by Marc Bourgeois), Recording Industry vs The People proprietor Ray Beckerman says he expects Tuesday's opening statements to be "a free-for-all" and said he "cannot for the life of me" understand why Judge Gertner is already speaking of jury instructions. He concludes his commentary with "I think I'm going to be sick." To which your reporter answers: Pass the Dramamine.

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