July 29, 2009

I Wasn’t There … [8:26 am]

But this sounds more confusing than enlightening — but, sometimes, that’s Charlie’s way: Opening statements made in civil suit over swapping songs (pdf)

Charles Nesson, the Harvard Law School professor defending a college student accused of illegally downloading and sharing music online, used an unusual prop in his opening statement yesterday to illustrate why a federal jury should side with his client against the recording industry.

Nesson held up a rectangular piece of plastic foam wrapped in cellophane and said it represented the compact discs that record companies sold before digital music became available online. Then he sliced open the wrapper with scissors and hundreds of tiny jigsaw pieces fell in a pile in front of the jury in US District Court in Boston.

“You have the ability to share, and this physical object’’ - the 70-year-old professor paused as he snipped - “suddenly broke into a million bits. Here it is. Bits. . . . Can you hold a bit in your hand? You can’t. . . . And suddenly you have songs being shared by millions of kids around the world.’’

[...] Sam Bayard, a lecturer at Harvard Law who works at the university’s Berkman Center for Internet & Society, founded by Nesson, listened to the opening statements and said Nesson appeared to be encouraging jurors to engage in a form of nullification. That refers to the controversial concept that jurors have a moral duty to disregard a judge’s instructions and rule in favor of a defendant in a criminal or civil case because they disagree with the underlying law.

“I think he’s arguing [Tenenbaum] did it, [the record companies] are right, but this isn’t morally blameworthy; he’s just a kid,’’ Bayard said. Such an appeal might encourage jurors to award minimal damages if they side with the industry, he said.

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