Justice, Equity, Public Interest, and the MP3

Like the Moakley Federal Courthouse itself, Judge Nancy Gertner's courtroom is an orderly, even stately place, brightly lit and impeccably arranged. The judge likes things to run smoothly. This morning, for example, several courthouse staff spent a good half-hour lining up the technology so that when the time comes to play the 'evidence,' a series of allegedly pirated songs, they play on cue.

The case in question pits the music recording industry, a phalanx of blue-suited lawyers and expert witnesses, consultants, and corporate executives, against Joel Tenenbaum, a twenty-something grad student who did what most other folks his age do: he 'illegally' downloaded hundreds of his favorite songs and--gasp!--shared them. For this 'infringement' the industry hopes Gertner and the jury will order him to pay hundreds of thousands of dollars in 'damages.' Aligned with Tenenbaum is Harvard law professor (and my good friend) Charlie Nesson, an affiliated local law firm, the Bill of Rights, and possibly, depending on how the case reaches the jury, a populist streak in the American consciousness that doesn't like to see big corporations use the courts to push ordinary folks around. But the road to that jury hearing passes through Judge Gertner.

The Judge, who described herself from the bench as a "creative judge," is known as something of a maverick, even a bit of a leftie, none of which was in evidence during this morning's pre-trial maneuvers. She displayed a primary allegiance to the institution of the law, which she referred to as "these four walls," and insisted that the case had to be trimmed to fit its dimensions. She declared her interest in keeping the various issues in "the right boxes," which could prove an impediment to Tenenbaum's defense. To be specific, the doctrine of "Fair Use"--what an ordinary person might think was appropriate use of song files given the available technologies and habits of file-sharing--rests at the center of Tenenbaum's defense. But Gertner suggested she might relegate this argument not to the trial itself but to the box marked "damages." If she does so, Tenenbaum loses the chance to prove that he is not a thief, a 'pirate,' but an ordinary non-commercial music listener. In effect, Gertner's rage to order may exclude Nesson's larger vision of what is equitable in this case.

I had a chance to hear a bit of that larger view this morning, as Nesson argued for a conception of the law as circumscribed, both theoretically and historically, by liberty. It is this elegant appeal to a higher principle--to a notion of popular sovereignty, in stark contrast to the plutocratic firepower assembled on behalf of the plaintiffs--which might well inspire a jury to see the larger interest in the case. We all have a stake in this vision of cyberspace as public space, of the internet not just as a field for online commerce, a profit center, but a public square where ideas--and yes, songs--can be freely exchanged. The recording industry and its gunslinger lawyers would like to mount Tenenbaum's head on a pole, as a warning to the rest of us. If Gertner insists on her narrow view of the case, overruling Nesson's visionary one, she just may let them do it.