Opening statements in Sony v. Tenenbaum

BY MARC BOURGEIOS

The second day of Sony v. Tenenbaum began as promised with the opening statements of Plaintiffs followed by Defendant.

Mr. Reynolds for the Plaintiff began his opening by describing the nature of the recording companies, stating that they are made up of real people who work to record and distribute music for the public to enjoy. He stated that his clients face a significant threat to their livelihood from copyright infringement on the internet. He stated his intention to show that Defendant had downloaded and distributed thousands of song files, all on the internet for free. He stated that while the infringement was massive his clients in the case were only focusing on thirty of these songs. He stated that these songs were distributed to millions of people without their permission with the KaZaA file sharing application. He described in basic terms what file sharing was, stating that it was sharing files with strangers that the Defendant did not know and described how the KaZaA application was downloaded and installed to a computer. He described the process of searching for song files and finding those available for downloading.

Mr Reynolds stated that his clients hired MediaSentry, and on August, 10th of 2004 that MediaSentry was searching for files as any other user would do. They then discovered a user with the username of sublimeguy14@KaZaA who had over 800 song files on his computer, and that some of these files were distributed to MediaSentry. He stated his clients listened to these files and verified that they were in fact sound files of songs that his clients sell. He then stated that evidence would not be presented of other distribution other than to MediaSentry, because the KaZaA application does not keep long files, and is designed so that no one else can see what is happening when these files are distributed on the internet. He stated however that they know other distributions took place because that was the entire purpose of the KaZaA application. He then described metadata in other files that MediaSentry was able to imply other transfers for two reasons, first that the metadata showed evidence that these files were downloaded from the internet and second that the data packets shown would show an IP address that identifies a specific device on the internet.

He then described that while they knew this information, they still did not know the identity of an anonymous sublimeguy14@KaZaA. He then described the process of locating a subscriber, J. Tenenbaum, via a subpoena on an Internet Service Provider, Cox Communications. Mr. Reynolds then proceeded to describe other evidence that would be shown by witnesses, such as the name sublimeguy14 being used by the Defendant for other this, and that the Defendant would admit that the KaZaA shared folder that was found was the one that he set up. He then said that Defendant had attempted to blame others when they contact for settlement, including other family members and friends. He then stated that they would show evidence of a computer investigated by Plaintiffs that would show over 2000 music files on it, and had other file sharing software installed. Mr. Reynolds wrapped up the statement by stating the jury would hear that defendant knew what he was doing and knew that it was illegal, and would hear about the harm this type of activity causes the music industry. He asked that the jury to hold Defendant responsible for his actions.

Professor Nesson then began his opening statement for the Defendant by stating that this story began long before 2004, it began in 1999 when Napster was created. Plaintiffs had great success in years prior selling music between the advent of the Compact Disc and when file sharing came in to popularity with Napster. He then described that before the internet the process of stealing music would likely involve stealing physical goods from a physical retailer, but now that it was something that could be done in someone’s own bedroom via the internet. Professor Nesson described Joel’s background as a high school student around the time that Napster came into existence and described a summary of his life thereafter, going to college and eventually enrolling in a PhD program at Boston University. He told the jury that that they would hear from Joel’s family. He described the Plaintiffs business model as a cube of styrofoam that was breaking up in the new world of bits on the internet. He described the Plaintiffs having a problem, and needing a new business model in regards to the new technologies that had developed on the internet.

Professor Nesson said that Mr. Reynolds was attempting to portray Joel as someone who ducked away from his responsibility, and described the process that the case had put Joel through, with multiple depositions and other difficulties to his life. Professor Nesson held up a poster of the Necker Cube, and asked the jury to look at it, despite it being a two-dimensional object was usually seen as a three-dimensional cube, but that many people could see it in two ways. If you see the cube in one form for a while and stare at it, often the cube will appear in a different perspective. He likened this to the situation Plaintiffs were attempting to place Joel in, that his actions could be seen in two different ways. He asked the jury to see the case from Joel’s point of view, and stated that he did not have the burden of proof. He asked the jury to recognize the impediment that he has gone through to reach them and allow them to see his point of view. Professor Nesson states that no profit was sought by Joel, and that Joel was not the part of any criminal syndicate. He then began describing the litigation the recording industry engaged in starting with their suits against Napster and Grokster. At this point the Plaintiffs object to what Professor Nesson is attempting to describe, and their objections are sustained.

He then said that the campaign got to the point where they couldn’t go after the services any longer, and they needed to begin litigation against individuals, and that this is where the lawsuit has its origins. He described the case as about 30 songs in two categories. Those songs first learned of in August 2007, a list of seven that was later reduced to five. He described the other category as an additional 25. He asked the jury to focus on the difference between the two categories and asked the jury to find if Joel infringed on each one. He asked the jury if they do get to a point where they have to determine damages to award damages that are just. He asks that if the jury finds a violation that they find it to be a minor violation. He states that if he did violate any laws that the violation was a part of the generation of which Joel is a member.

At this point Professor Nesson is reminded he is running out of time for his opening statement and concludes his statement by thanking the jury for their time.

Witnesses begin with Wade Leak of Sony.

[Ed. note. I'm definitely going to be sick. -R.B.]

Second day of SONY v Tenenbaum trial concluded #jfb

The second day of the SONY BMG Music Entertainment v. Tenenbaum trial has been concluded.

The Court's docket entry is as follows:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 2 (TUES) held on 7/28/2009.Openings and Evidence begins; Plf calls 1st witness P-1 Wade Leak; P-2 Chris Connelly; P-3 James D. Chappel; P-4 Arthur Tenebaum; Plf calls Abigail Nathan and Tova Tenebaum by depo, deposition read by Justine Simisky, court adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Molloy, Maryellen)

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My wish list for the SONY v. Tenenbaum trial

This is the wish list I wrote last Friday for the SONY BMG Music Entertainment v. Tenenbaum trial. It's a very simple, very short list. Basically, all I asked was that the trial be in the real world rather than in the parallel universe.

1. If the plaintiffs wish to prove distribution, they should have to prove:
(a) dissemination of copies
(b) to the public
(c) by sale, other transfer of ownership, rental, lease, or lending. See 17 USC 106(3).

2. If the plaintiffs wish to claim statutory damages, they should have to prove as to each work allegedly infringed that its copyright registration effective date preceded the date on which defendant allegedly began using the "online media distribution system" in question. The jury should be required to make findings as to (a) the date defendant commenced using an “online media distribution system” (Kazaa) and (b) the copyright registration effective date of each work they find was infringed. The jury should be instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa. See Practice Tip.

3. Plaintiffs' lawyers should be prohibited from making any reference in the presence of the jury to any copyright infringement by anyone other than defendant or to their business problems or anything else unrelated to a copyright infringement by this defendant.

4. If the plaintiffs have proved a basis for seeking statutory damages, the jury should not be allowed to award statutory damages of more than $750 per infringed work, absent proof of actual damages of hundreds of dollars per infringed work. (There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. Unless there is evidence of defendant actually having been a distributor, the actual damages are as a matter of law something less than the maximum wholesale price of 70 cents, so in that case the jury should be instructed to award $750 per work it found to have been infringed.) See Practice Tip.

5. If plaintiffs' counsel claim that defendant "could have disseminated" a great number of copies "to the public" they should be required to prove that technically, rather than assuming it to be true, and they should be required to prove then that it actually did happen, rather than be permitted to speculate that it might have.

6. Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.

7. Testimony from MediaSentry and Jacobson should be barred under Daubert:
(a) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry is an expert (see USA v. Ganier, 468 F.3d 920 (6th Cir. 2006); therefore its testimony should be barred for failure to provide expert witness disclosure;
(b) Alternatively, MediaSentry documents and testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702

8. In the event that there are multiple mp3's from one album, the jury should be instructed that the album constitutes a single “work”. (See, e.g. UMG Recordings, Inc. v. MP3. Com, Inc., 109 F. Supp. 2d 223, 224 (S.D.N.Y. 2000); Rocking Chair Enters., L.L.C. v. Macerich SCG Ltd. P'ship, 407 F. Supp. 2d 1263, 1268-1269 (W.D. Okla. 2005); King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 864-866 (M.D. Tenn. 2006))

Is that too much to ask? Is there a single thing I have said that is controversial, either as a matter of federal practice, or as a matter of copyright law?

-R.B.

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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.

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.]

Commentary & discussion:
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Jury selection completed, opening statements tomorrow morning, in SONY v Tenenbaum

According to a tweet from joelfightsback, day was devoted to jury selection, which has been completed, and the opening statements start tomorrow morning, in SONY BMG Music Entertainment v. Tenenbaum.

[Ed. note. In view of the large amount of time that was spent in jury selection in a small, simple, case, and the unusual and inappropriate nature of the jury questionnaire the parties had agreed on, I fear that the same kind of "poisoning" of the jury pool took place that took place in Minnesota. I hope I am wrong. -R.B.]



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Fair Use defense dismissed in SONY v. Tenenbaum

The Court has granted the plaintiffs' motion for partial summary judgment dismissing defendant's fair use defense in SONY BMG Music Entertainment v. Tenenbaum, based upon defendant's admissions:

Judge Nancy Gertner: Electronic ORDER entered granting [871] Motion for Partial Summary Judgment on Defendant's Fair Use Defense: The Plaintiffs' Motion for Partial Summary Judgment [871] is GRANTED, with a full opinion to follow. Defendant Tenenbaum has asserted a fair use defense to the allegations of copyright infringement in this case, a question on which the Plaintiffs seek summary judgment. At summary judgment, a court considers whether sufficient facts have been established to warrant a decision as a matter of law. If material facts are in genuine dispute, the question must go to a jury; if they are not, the Court must determine the legal consequences of the uncontested facts. The Seventh Amendment does not guarantee the right to a jury trial on every issue, only those that turn on reasonably disputed facts. See Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006). The Defendant has the burden of identifying the disputed facts, see Fed. R. Civ. P. 56(c), (e), a burden which "requires hard proof rather than spongy rhetoric. Kearney v. Town ofWareham, 316 F.3d 18, 22 (1st Cir. 2002). Tenenbaum has not met that burden. He proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment. See Acuff-Rose, 510 U.S. at 584 ("[T]he mere fact that a use is not for profit does not insulate it from a finding of infringement."). Likewise, his demand for a jury determination on this issue appears all but standardless; "fair use" would, in effect, be any use whatsoever that a jury deemed fair. In the end, fair use is not a referendum on fairness in the abstract, as the Defendant would have it, but an effort to measure the purpose and effects of his particular use against the incentives for artistic and literary creation that Congress established in the Copyright Act. See also Const.Art. I, Sec. 8, cl. 8. Tenenbaum makes no effort to fit his alleged file-sharing into this framework, no claim of a transformative use or public benefit sufficient to justify an exception to copyright protections. Sony Corp., 464 U.S. at 429-30. To be sure, this Court can envision certain circumstances in which adefendant sued for file-sharing could assert a plausible fair use defense.Indeed, an amicus brief previously filed in this consolidated action by the Berkman Center at the Harvard Law School (on which Defendant's counsel was a signatory) outlined some of those circumstances -- for example, the defendant who "deleted the MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased." See Berkman Center Br. at 37 (document # 177-3). The Court can also envision a fair use defense for a defendant who shared files during aperiod of time before the law concerning file-sharing was clear andpaid outlets were readily available. The advent of the internet inthe late 1990s threw a number of norms into disarray, offering suddenaccess to a wealth of digitized media and giving the veneer of privacy oranonymity to acts that had public consequences. At the beginning of thisperiod, both law and technology were unsettled. A defendant who sharedfiles online during this interregnum but later shifted to paid outlets oncethe law became clear and authorized sources available would present astrong case for fair use. It might matter, too, who the defendant sharedfiles with -- his friends, or the world -- as well as how many copyrightedworks, and for how long. See Sony Corp. v. Universal City Studios, Inc.,464 U.S. 417, 451 n.34 (1984). But the Defendant has offered no facts to suggest that he fits withinthese categories. He is accused of sharing hundreds of songs over a numberof years, far beyond the infancy of this new technology or any legaluncertainty. And in his summary judgment opposition, he has contested few of the facts offered by the Plaintiffs in support of their motion. See Pl. Statement of Undisputed Facts (document # 74); Opp. to S.J. at 5-9 (document # 889). On the face of the summary judgment record -- the only record before the Court at this time -- the following details do not appear to be in genuine dispute: (1) the main purpose of Tenenbaums file-sharing was his own private enjoyment and that of his friends, not profit-making; (2) he downloaded entire songs, but not entire albums of music; (3) he did not transform the 30 works at issue in the sense that he added "something new, with a further purpose or a different character," Acuff-Rose, 510 U.S. at 579; (4) his file-sharing spanned more than four years and several different software platforms, both before and after this activity was detected in August 2004; and (5) at that time, his file-sharing software made more than 800 songs available to other KazaA users to download. See Pl. Statement of Undisputed Facts at 1-4, 6. The only fair use factor on which the Defendant raises a serious factual challenge is the effect of his file-sharing on the potential market for orvalue of the copyrighted works, see 17 U.S.C. 107(4), in which he argues that file-sharing has not diminished the record companies' revenues nor curtailed overall artistic creation. But here again, Tenenbaum has put no facts into evidence on which the Court could rely; his opposition briefsare not accompanied by any affidavit, expert report, deposition testimony,or other evidence of the kind described by Rule 56(e). Even more, theCourt is bound to look at the market for the specific works identified byPlaintiffs and as to this market, a court must consider "whetherunrestricted and widespread conduct of the sort engaged in by thedefendant... would result in a substantially adverse impact on thepotential market for the original." Campbell v. Acuff-Rose Music, Inc., 510U.S. 569, 590 (1994) (quoting Nimmer § 13.05[A][4]). Plaintiffs have argued that continuous, high-volume file-sharing -- offering exact duplicates to millions of peer-to-peer users for free -- would negatively affect themarket for these copyrighted works. The Defendant has offered no facts to the contrary. While the Court recognizes that not every unauthorized download would represent a lost sale, it seems clear that some portion of paying consumers would shift to free downloads if this activity were deemed a fair use. Based on this finding, the private purpose of this use, the substantiality and lack of transformation, and those additional factors the Court is entitled to consider, the Court holds that Tenenbaum's alleged infringement was not a fair use. See Hustler Magazine, Inc. v.Moral Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986); A&M Records, Inc.v. Napster, Inc., 239 F.3d 1004, 1012-19 (2001). Accordingly, thePlaintiffs' Motion for Partial Summary Judgment on fair use is GRANTED. Afull opinion by the Court shall follow. Finally, to the extent that the Defendant's fair use arguments are also relevant to any damages determination under 17 U.S.C. 504(c), he shall have the opportunity to present them to the jury at trial. (Gertner, Nancy)

[Ed. note. It is regrettable that defendant's counsel made no attempt to draw any factual distinctions among the different types of behaviors in which defendant engaged, utilizing peer to peer file sharing software, but instead took a broad all-or-nothing position that the use of Kazaa for noncommercial purposes was totally protected by "fair use". There are interesting, difficult questions regarding fair use, lurking out there, which will just have to await resolution in other cases, where the issues are more properly framed. -R.B.]

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Palfrey's expert testimony excluded

The proposed expert testimony of attorney John Palfrey has been excluded in SONY BMG Music Entertainment v. Tenenbaum.

Judge Nancy Gertner: Electronic ORDER entered granting [888] Motion in Limine with regard to the expert witness, John Palfrey: Defendant has designated John Palfrey as an expert witness in this case. Palfrey proposes to testify about a) how children understand fair use, and how that understanding has changed over time; b) the characteristics of "digital natives" and their practices and discourses surrounding creativity and copyright; c) the importance, in educating children, of communicating principles of behavior which they can understand. Plaintiffs have challenged both the relevance of Palfreys testimony and, under Daubert, his qualifications to offer the opinions contained in his proposed testimony.I do not agree with Plaintiffs challenge to Palfreys qualifications, at least as to (b) and to a lesser extent, (a). Palfrey has conducted and published a study of the internet generation (so-called digital natives") and their attitudes towards creativity and copyright; in effect, he seeks to testify about his research. He is well qualified to speak about the areas which he has studied and the data it has generated.The problem, however, is one of relevance. Palfrey is not offering, and expressly disclaims, any intent to testify about fair use -- the defense that would excuse Tenenbaum's allegedly infringing conduct. Palfrey's deposition made this clear: When asked about the relationship between his research, copyright law, and the use of the internet to obtain copyrighted works, he said I dont have the first idea. When asked whether he was suggesting different norms of infringement should be applied to digital natives in contrast to others (Plaintiffs counsel described them as mere mortals), he answered, I am not.Presumably, then, Palfrey's testimony is offered on the question of whether Tenenbaum's alleged infringement and the damages that accrue from it, but even in that regard it is flawed: Palfrey concedes that the general observations of his work -- which are quite interesting and important, and may well be helpful for policymakers -- do not apply to the Defendant in this case. Even assuming that this testimony bears on the question of whether infringement, if found by a jury, was willful, Palfrey does not claim that Tenenbaum is an example of the individuals he has studied. When asked whether the observations he obtained from focus groups and his study can be applied to Tenenbaum, he stated: I make no claim whatsoever on that score. When asked if he could claim that the conclusion in his report applies to Tenenbaum, he stated I cannot." When asked whether his research bears on the question of whether Tenenbaum should have understood that what he was doing was illegal, he noted: I dont," and added, I dont think my survey speaks to that in any meaningful way. Nor is there another witness who would link Palfreys general observations to Tenenbaum or the pattern of his conduct in this case. Accordingly, Palfrey's testimony is EXCLUDED. (Gertner, Nancy)

[Ed. note. I do not find this surprising. I am not enough of a visionary to understand why his testimony was being offered in the first place. -R.B.]

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

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.

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Lava v. Amurao appeal to be argued September 23rd in morning

We've just received word that the appeal in Lava Records v. Amurao, the "throwing in the towel" attorneys fees suit pending in the US Court of Appeals for the Second Circuit, will be argued on Wednesday, September 23rd, on the 10:00 A.M. calendar.

The proceedings are open to the public.

This appeal involves whether the RIAA can be held liable for the defendant's attorneys fees.

The argument was initially scheduled for May 19th, but Timothy Reynolds, representing the RIAA, requested and received an adjournment, on the alleged ground that he had a "trial" scheduled for May 18th, in an unnamed case. We have never heard a word of any such trial.



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Court issues rulings in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum the Court has issued several rulings:

-Defendant will be permitted to use Wayne Marshall to demonstrate the file sharing technology to the jury. The Court reserved decision on any fact testimony by Mr. Marshall;
-Plaintiff would not be precluded from attempting to prove infringement of 30 song files, as opposed to the 5 the RIAA had verified; and
-Expert testimony from Felix Oberholzer-Gee would be precluded.

Judge Nancy Gertner: Electronic ORDER entered. Defendant's Motion for Reconsideration of the Court's ruling excluding Wayne Marshall as an expert, made orally at Monday's conference, is DENIED. Marshall was proposed as an expert on June 29, 2009 -- months after the Defendant first proposed adding his fair use defense (April 15), a month after the original deadline for expert disclosures (May 30), weeks after the Court allowed addition of the fair use defense (June 15), and a week after the strict deadline for submission of expert reports (June 22). See June 16, 2009 Scheduling Order (setting strict schedule for fair use discovery and cautioning Defendant that further failures to meet the Court's time-limits could cause him to forfeit crucial elements of his case). The Defendant's only explanation for his delay is that the proposed expert did not realize earlier how his expertise would be relevant to this case. As before, this reason does not warrant an exception to the extremely tight calendar dictated by the July 27 trial date, agreed to by both sides. Marshall is also listed as a "fact" witness in the pretrial memorandum, and as someone who will be demonstrating file-sharing to the jury. The Court will allow Marshall to demonstrate the technology. As to any "fact" testimony beyond that demonstration, the Court will reserve judgment. (Gertner, Nancy)

Judge Nancy Gertner: Electronic ORDER entered. The Defendant argues in his proposed jury instructions that the Plaintiffs should be limited to proving infringement of 5 recordings at trial, listed in Exhibit A to the Complaint, rather than the 30 songs for which they now intend to show copyright violations at trial, the remainder of which appeared in Exhibit B. While ordinarily the Court does not address jury instructions at the outset of the case, this issue is different since it may bear on defendants overall strategy. Defendant does not suggest that the Plaintiffs were required to formally amend the Complaint (beyond noting the songs in Exhibit B to the complaint). Nor does he deny that the Defendant received notice of the Plaintiffs' intent to proceed on these 30 recordings via an amended Rule 26 disclosure as early as October 2008. Counsel simply says that he "missed" the disclosure, that it was not publicly reviewable (because it was part of discovery exchanged between the parties as the Rules permit) and that the Plaintiffs should not be permitted to pick the number of infringements they want to prove. This objection simply does not provide a basis for barring claims of which the Defendant had notice and which are appropriate for trial given the facts and allegations now before the Court. Alternatively, Tenenbaum suggests that, if anything, he should be found liable for only one act of infringement because his "non-commercial" file-sharing constitutes a single course of conduct subjecting him, at most, to a single penalty regardless of how many copyrighted works he shared or over what period. This interpretation is not supported by the language of 17 U.S.C. 504(c)(1). As Defendant concedes, it reads the law's clear provision for penalties "with respect to any one work" out of the statute altogether, in order to satisfy the Defendant's sense of "logic" and "proportion." Id. While the Court may agree that the copyright law is gravely out of proportion, the Defendant's logic is not Congress' logic. Trial will go forward on the 30 sound recordings for which the Plaintiffs provided notice to the Defendant.(Gertner, Nancy)

Judge Nancy Gertner: Electronic ORDER entered granting [896] Motion in Limine with respect to Felix Oberholzer-Gee, who has been proposed as an expert only days before trial without any expert report offered whatsoever. (Gertner, Nancy)

[Ed. note.

As most of my readers know, (a) MediaSentry has admitted under oath that it is impossible to verify that the song files alleged to be infringing copies are indeed copies, without playing and listening to them, and (b) only the handful of files enumerated in exhibit A to the complaint have been played by someone at the RIAA or record company to verify that they were in fact the alleged song files.

So at some point the plaintiffs will have to come up with proof of adequate verification, and someone from the plaintiffs will have to attest to such verification. As near as I can tell from the witness list I have seen, there is no one on that list who could give such testimony, since MediaSentry has not been doing the verification itself, instead turning the files over to someone at the RIAA to play and to listen.

Upon finding out that there was no verification of any of the song file copies, other than those listed on exhibit A to the original complaint, the Court will have to reach the same conclusion defendant's counsel have asked the Court to reach now. I.e., although it will not be a matter of preclusion, but a matter of the failure of proof, the end result will be the same.

Unfortunately, it appears that the deposition transcript was not brought to the Court's attention in connection with the preclusion motion, and the argument was not presented forcefully. But if Judge Gertner subjects the plaintiffs' evidence to any kind of scrutiny, she will eventually get to the same place to which the motion would have brought her, except that an hour or two of trial time will have been wasted.

-R.B.]


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