Recording Industry vs The People

In SONY BMG Music Entertainment v. Tenenbaum, the Court has entered judgment.

In addition to the monetary award fixed by the jury, the Court also granted some, but not all, of the injunctive relief requested by the RIAA.

Additionally, the Court set briefing schedules for post-judgment motions, and for motions for fees and sanctions.

The Court also issued a ruling explaining its reasoning for dismissing the fair use defense, which (a) indicated that there might be many scenarios under which fair use would be a defense to an RIAA vs. End User p2p file sharing case, and (b) criticized -- at length -- the defendant's lawyer's behavior.

Decision granting in part, denying in part, plaintiffs' motion for permanent injunction
Judgment
Order Scheduling Post-Judgment Motions
Order Scheduling Attorneys Fees and Sanctions Motions
Decision explaining ruling striking fair use defense

[Ed. note. Since the defendant "admitted liability" there really was no legal issue for the Court to decide other than (a) the scope of injunctive relief, (b) the excessiveness of the statutory damages award, and (c) the constitutionality of the statutory damages award. As the Court's ruling indicates, issues (b) and (c) remain open and are expected to be the subject of further briefing. Additionally, the issues of attorneys fees and sanctions are likewise open, and expected to be the subject of further briefing. -R.B.]

Commentary & discussion:

p2pnet.net
p2pnet.net
LA Times
Heise Online (German)







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posted by Ray Beckerman @ 12/07/2009 10:40:00 AM 1 Comments Links to this post

The South by Southwest festival for 2010 has announced its first group of music panels, and my panel -- "Recording Industry vs. The People" -- was among those selected:

"Freshly Picked Music Panels"

Should be a lot of fun. Looking forward to it.

Should be a good opportunity to learn more about what the music industry will look like without record companies whose only business plan is to bring extortionate lawsuits against defenseless people.



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posted by Ray Beckerman @ 12/03/2009 08:45:00 PM 9 Comments Links to this post

In Arista v. Does 1-16, the appeal from the lower court's rulings was argued in the United States Court of Appeals for the Second Circuit, on Friday, November 20th.

Decision was reserved.

Briefs:

Brief of Appellant
Appellees' Brief
Appellant's Reply Brief

[Ed. note. I was in attendance. Unfortunately, the argument did not appear to go well, and did not deal with any of the procedural unfairness issues in the RIAA's inappropriate use of ex parte procedures where they could easily provide prior notice through the ISP. See, ABA Judges' Journal Article: "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations". I was very disappointed that so many important issues were not aired in the argument. - R.B.]


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posted by Ray Beckerman @ 11/25/2009 10:50:00 AM 0 Comments Links to this post

In Lava Records v. Amurao, the appeal by Rolando Amurao from a lower court order denying his attorneys fee motion, the Second Circuit has affirmed the order of the lower court by a "summary order" (an order having no precedential effect).

The Court relied in part upon

Amurao’s pre-suit written admission to the plaintiffs that “[w]e downloaded the songs [in question] through a program called Lime Wire,” Amurao’s subsequent less-than-candid responses to plaintiffs’ discovery requests, and the plaintiffs’ efforts to terminate this case quickly once it became clear through discovery that another member of Amurao’s household, rather than Amurao himself, had, in fact, downloaded the copyrighted materials.

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posted by Ray Beckerman @ 11/16/2009 12:30:00 PM 2 Comments Links to this post

In Andersen v. Atlantic Recording, Tanya Andersen's abuse-of-process class action, the Court granted the RIAA's motion for partial summary judgment dismissing so much of Ms. Andersen's claims as arise from initiation of an action against her.

The motion did not involve so much of Ms. Andersen's claims as arise from the RIAA's continuation of the action against her. That aspect of her case remains pending.

The basis for the Court's decision was the Noerr-Pennington doctrine.

November 12, 2009, opinion and order granting RIAA's motion for summary judgment dismissing complaint

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 11/13/2009 03:08:00 PM 9 Comments Links to this post

Brooklyn Law School has modified the position it took the other day, in which it had indicated it was going to actively investigate who may have been downloading MPAA movies or shows, and turn over the names for "enforcement" purposes. It sent out the following email a day later:

From: Announcements On Behalf Of Phil Allred
Sent: Thursday, October 29, 2009 12:08 PM
To: All Users
Subject: [BLS] Update on illegal downloads e-mail notice

Yesterday, I sent out an e-mail regarding the recent spate of abuse notices we have received from our Internet service provider. Under our contract, users are prohibited from downloading copyrighted works. If we knowingly allow such activity to continue without taking action, we risk losing access to the Internet. When we can ascertain the people who are responsible for alleged illegal downloads, we will notify them to cease such activity. We will comply with the Digital Millennium Copyright Act (http://www.copyright.gov/title17/92chap5.html#512 ). Outside of the legal process, we are not obligated to turn over the names of the alleged infringers to copyright holders and will not do so.

Commentary & discussion:

p2pnet.net

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posted by Ray Beckerman @ 10/30/2009 12:16:00 PM 6 Comments Links to this post

In Arista v. Does 1-16, the appeal from the lower court's rulings has been set down for argument in the United States Court of Appeals for the Second Circuit, on Friday, November 20th, on the 2:00 P.M. calendar (pdf).

The courthouse is located at 500 Pearl Street, New York, New York, and its proceedings are open to the public.

Briefs:

Brief of Appellant
Appellees' Brief
Appellant's Reply Brief



Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 10/28/2009 07:44:00 PM 3 Comments Links to this post

We have been advised that Brooklyn Law School students have received the following email from Brooklyn Law School:

From: Phil Allred
Date: October 28, 2009 11:49:41 AM EDT
To: All Users
Subject: [BLS] Illegal downloading

This semester we have received several warnings from our Internet service provider that copyrighted movies and TV shows are being downloaded illegally via our wireless network. The Information Technology office is now ascertaining who is doing this. Once we have names of the individuals involved, we intend to give them to the copyright holders for enforcement purposes.

We remind everyone that copyright abuse is illegal and that use of the Internet while at Brooklyn Law School must be in accordance with our published Terms of Service document located at http://www.brooklaw.edu/terms.

Phil Allred
CIO
Brooklyn Law School

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posted by Ray Beckerman @ 10/28/2009 03:40:00 PM 14 Comments Links to this post

In UMG Recordings v. Lindor, both sides today filed objections to the Magistrate Judge's October 9, 2009, report and recommendation, which recommended that plaintiffs' motion to dismiss without prejudice be granted without conditions, and that plaintiffs' motion for discovery sanctions be denied.

Plaintiffs' objections
Defendant's objections

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posted by Ray Beckerman @ 10/26/2009 11:49:00 PM 4 Comments Links to this post

For those of you who have or want to open PACER accounts, and want to help out in the fight against the RIAA's litigation campaign, here is a watch list of cases which I'd appreciate your monitoring whenever you can.

This is not an all-inclusive list of cases we are watching, but just a select list of cases that need extra watching for various reasons.

If anything happens in one of these cases, please email me the *pdf's. This will be a recurring post, in which cases will be added to and subtracted from the list, so bookmark the permalink near the bottom of this post.

The PACER login page is here. To sign up for PACER go here.

Please look only for documents subsequent to August 9, 2009.

Instructions: Log in. Go to district court, then input case number. Request "docket report". If there is new activity, download *pdf file and email to me. (If you're not sure if it's important enough, email me and ask.) Thanks. -R.B.

Commentary & discussion:

p2pnet.net

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posted by Ray Beckerman @ 10/20/2009 05:00:00 PM 13 Comments Links to this post

In Fairey v. Associated Press, the fair use case involving a painting of Pres. Obama from a photograph, the plaintiff has sought to amend his complaint, on the ground that he had made incorrect statements about the photograph on which his painting had been based.

Additionally, his motion states that he had initially attempted to cover up his mistake, rather than bring the mistake to the attention of his attorneys.

Motion to amend complaint
Proposed amended complaint



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posted by Ray Beckerman @ 10/17/2009 05:54:00 PM 0 Comments Links to this post

Magistrate Judge Robert M. Levy has recommended that the RIAA's motion for discovery sanctions against the defendant and her counsel in UMG Recordings v. Lindor be denied, and that the RIAA's motion for the action to be voluntarily dismissed "without prejudice" be granted.

The Judge held that "Plaintiffs’ claims concerning defendant’s conduct are largely overstated."

Decision of Magistrate Judge denying plaintiffs' motion for discovery sanctions, granting plaintiffs' motion for voluntary dismissal without prejudice



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posted by Ray Beckerman @ 10/09/2009 01:33:00 PM 12 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, defendant has filed a brief in opposition to the plaintiffs' request for an injunction.

Defendant's opposition brief



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posted by Ray Beckerman @ 10/05/2009 08:15:00 PM 4 Comments Links to this post

I attended the argument of the appeal in Lava Records v. Amurao on September 23rd.

The Court reserved decision.

During the appellant's initial argument, and the appellees' opposing argument, the questions of the judges focused on the specific facts of the case, primarily (a) a letter Mr. Amurao had sent prior to the lawsuit incorrectly indicating that "we" had engaged in file sharing, even though he himself had never engaged in it, and (b) Mr. Amurao's testimony at his deposition.

However, when Mr. Amurao's attorney, Richard A. Altman, rose for the rebuttal argument, the focus of the Court's questioning shifted to the type of evidence the RIAA had garnered prior to pursuing Mr. Amurao, i.e., the MediaSentry activities.

None of the members of the Court appeared familiar with those procedures. By the end of that final portion of the argument, however, they seemed to have understood that the MediaSentry investigation and subpoena could at best have led the RIAA to a computing device and to an an internet access account, but could not have identified an individual who had committed copyright infringement.




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posted by Ray Beckerman @ 9/28/2009 07:51:00 PM 6 Comments Links to this post

An order was entered in Boston that the RIAA's Massachusetts cases are no longer to be consolidated:

Judge Nancy Gertner: Electronic ORDER entered: "Because of the number of cases and to facilitate judicial management, these cases will no longer be consolidated. All future filings should be filed in each defendants' respective case and no longer in the lead case." Associated Cases: 1:03-cv-11661-NG et al.(Gaudet, Jennifer)

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posted by Ray Beckerman @ 9/28/2009 05:54:00 PM 3 Comments Links to this post

According to this report in IP Watch, Victoria A. Espinel will be nominated to be the first White House Intellectual Property Enforcement Coordinator.

[Ed. note. I have no information, one way or the other, on whether this is a good appointment. The fact that the RIAA and MPAA praised the appointment sounds ominous, but what are they supposed to do? Attack the appointment? So if anyone has information on Ms. Espinel's background, let me know about it in the comments to this post. Thanks. -R.B.]



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posted by Ray Beckerman @ 9/28/2009 12:51:00 PM 6 Comments Links to this post

Hat tip to my friend ZAGrrl on Twitter:

Interesting article by Sarah Lacy in TechCrunch about popular cellist Zoe Keating (zoecello on Twitter):

"Zoe Keating: Web Fame that Actually Translated to a Career"

[Ed. note. You can probably guess that my favorite passage is this one:

[S]he gets that the model for musicians is thoroughly broken and she revels in it. I asked if she would take a huge record deal if it came to her now and she said “no” before I could finish the question. “I would definitely do it myself because I don’t want to compromise,” she said.

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posted by Ray Beckerman @ 9/27/2009 10:01:00 PM 0 Comments Links to this post

Rolando Amurao's appeal from a lower court order denying his motion for attorneys fees in Lava Records v. Amurao, is scheduled to be argued before the US Court of Appeals for the Second Circuit, on Wednesday, September 23rd, on the Court's 10:00 a.m. calendar (pdf).

The appeal was initially scheduled to be argued on May 19th, but was adjourned at the RIAA's request.

[Ed. note. The case presents a typical "throwing in the towel" scenario. Mr. Amurao was sued only because he was the person who paid the bills for the internet access account in question. Subsequently, after substantial litigation, his daughter testified that she had engaged in p2p file sharing. The RIAA thereafter withdrew the case against Mr. Amurao, but refused to reimburse him for his attorneys fees. -R.B.]

Here are copies of the briefs:

Appellant's Brief
Appellees' Brief
Appellant's Reply Brief

The courthouse is at 500 Pearl Street in Manhattan. The proceedings are open to the public.



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posted by Ray Beckerman @ 9/16/2009 09:47:00 AM 11 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court granted defendant's motion for an extension of time, by extending his time to respond to plaintiffs' motion for judgment to October 5th:

Judge Nancy Gertner: Electronic ORDER entered granting [940] Motion for Extension of Time to 10 days after judgment to Respond to Plaintiffs' request for injunction by Joel Tenenbaum. "The Court construes counsel's motion as a motion for extension of time to respond to plaintiffs' motion for entry of judgment -- a judgment that will include any injunction that the Court decides to issue. The Court orders the defendant to file his objection to plaintiffs' motion for entry of judgment by October 5, 2009." (Gaudet, Jennifer)

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posted by Ray Beckerman @ 9/15/2009 01:27:00 PM 1 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, defendant has moved for an extension of time in which to oppose plaintiffs' motion for an injunction, after plaintiffs' lawyers rejected his request.

Defendant's motion for extension of time



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posted by Ray Beckerman @ 9/14/2009 05:36:00 PM 3 Comments Links to this post

The plaintiffs have filed a motion for entry of judgment in SONY BMG Music Entertainment v. Tenenbaum.

Plaintiffs' motion for entry of judgment




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posted by Ray Beckerman @ 9/01/2009 05:46:00 PM 5 Comments Links to this post

In Capitol Records v. Thomas-Rasset, the defendant has filed her reply brief in support of her motion to set aside the jury's $1.92 million verdict.

The RIAA also filed its reply brief in support of its motion to amend the judgment.

Defendant's reply brief in support of motion to set aside verdict
Plaintiffs' reply brief in support of motion to amend judgment

[Ed. note. For reference purposes, here is a link to my brief on the subject, and here is a link to the recent law review article by Prof. Pamela Samuelson and Research Fellow Tara Wheatland. -R.B.]



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posted by Ray Beckerman @ 8/30/2009 04:16:00 PM 0 Comments Links to this post

I've submitted two proposals for presentations at the 2010 South by Southwest festivals. If you'd like to vote for them (and don't work for the RIAA) (:)) here are the links for the "panel picker" voting, which is open to the public, whether you are planning to attend the festival or not.

Interactive festival:

"How NewYorkCountryLawyer became a Twit"

Music festival:

"Recording Industry vs. The People"

My music panel is trending in the top 60.

My interactive panel, in the much more competitive "interactive" part of the festival, isn't doing as well.

As I look at it, the social media story is maybe even more important than the music business story, because it is the blogging and Slashdotting and grassroots organizing over the internet that enabled lawyers and litigants across the country to mobilize and learn from each other.

So if you could see your way clear to supporting the proposals, by spreading the word, and/or by voting and commenting, it would be appreciated.

-R.B.



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posted by Ray Beckerman @ 8/26/2009 08:10:00 PM 0 Comments Links to this post

An updated and revised version of the working paper by Prof. Pamela Samuelson and Research Fellow Tara Wheatland of the University of California Berkeley School of Law, on the subject of Copyright Act statutory damages, has been posted:

"Statutory Damages in Copyright Law: A Remedy in Need of Reform"



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posted by Ray Beckerman @ 8/22/2009 06:21:00 PM 1 Comments Links to this post

In Arista Records v. Launch Media, the RIAA lost its copyright infringement case against a company which provides its users with individualized internet radio stations. The company, Launch Media, is now owned by Yahoo.

The US Court of Appeals rejected the RIAA's argument that the users' ability to customize the radio stations made them "interactive services" rather than "radio stations", and affirmed the ruling of the Court below, finding that the internet radio stations in question did not provide copyrighted sound recordings on request, and did not transmit a program specially created for the user.

Opinion of US Court of Appeals for Second Circuit affirming judgment for defendant

[Ed. note. There's an interesting lesson in this report for you law students and young lawyers out there. (1) All 4 of the "usual suspects" from the "Gang of 4" brought the suit. (b) After they lost the jury trial, only SONY BMG Music Entertainment pursued an appeal. (3) Had there been no appeal, all there would have been is a jury verdict, which in any other case could have been explained away as being based on, and limited to, a jury's conclusion as to the facts of the Launch Media case. (4) But SONY just had to pursue its appeal, resulting in a 42-page appellate decision holding that "as a matter of law" a personalized internet radio station of the type provided by Launch Media is NOT interactive, no matter what the jury might have found. (5) This decision now creates a safe harbor for a whole industry and business model. Thank you SONY. -R.B.]

Commentary & discussion:

Slashdot
p2pconsortium
TechDirt
p2pnet.net







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posted by Ray Beckerman @ 8/22/2009 02:34:00 PM 6 Comments Links to this post

To my mind, both of the "trials" which took place recently, in Capitol Records v. Thomas-Rasset and SONY BMG Music Entertainment v. Tenenbaum were travesties.

For review purposes I cite my blog posts on the subject of what wasn't done that ought to have been done.

"Have any of the actual issues been dealt with in SONY v. Tenenbaum?"

"How Thomas-Rasset case would have played out, had we not been in the Parallel Universe"



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posted by Ray Beckerman @ 8/22/2009 10:43:00 AM 1 Comments Links to this post

The outlandish jury verdicts of 1.92 million dollars and 675 thousand dollars which have come down in Capitol Records v. Thomas-Rasset and SONY BMG Music Entertainment v. Tenenbaum, respectively, have moved from the back burner to the front burner the issue of the unconstitutionality of the RIAA's statutory damages theory under the Due Process clause of the 5th Amendment.

Accordingly I thought it an appropriate time to repost the amicus brief which I filed on the subject in Tenenbaum several months ago.

Revised amicus curiae brief of Free Software Foundation



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posted by Ray Beckerman @ 8/22/2009 10:34:00 AM 0 Comments Links to this post

In Lava Records v. Amurao II, the defendant has filed her reply brief in support of her cross-motion for summary judgment.

Defendant's reply memorandum in support of defendant's cross-motion for summary judgment




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posted by Ray Beckerman @ 8/19/2009 09:04:00 PM 2 Comments Links to this post

In the RIAA's case against Rolando Amurao's daughter, Audrey Amurao, Lava Records v. Amurao II, the RIAA has filed its reply papers, supporting its motion for summary judgment and opposing Ms. Amurao's cross-motion for summary judgment.

Plaintiffs' Reply Memorandum in connection with summary judgment motions



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posted by Ray Beckerman @ 8/19/2009 06:57:00 PM 1 Comments Links to this post

I've submitted two proposals for presentations at the 2010 South by Southwest festivals. If you'd like to vote for them (and don't work for the RIAA) (:)) here are the links for the "panel picker" voting.

Interactive festival:

"How NewYorkCountryLawyer became a Twit"

Music festival:

"Recording Industry vs. The People"

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 8/17/2009 01:20:00 PM 0 Comments Links to this post

We just thought it interesting to point out that the lead signatory on the Department of Justice brief in Capitol Records v. Thomas-Rasset, Assistant Attorney General Tony West, has a content industry background, and recently recused himself in the Cartoon Network case.



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posted by Ray Beckerman @ 8/15/2009 02:02:00 PM 3 Comments Links to this post

In Capitol Records v. Thomas-Rasset, the opposition briefs in connection with the post-trial motions were filed yesterday. Reply briefs are due Friday, August 21st.

The RIAA defended the $1.92 million verdict based on infringement of 24 mp3 files.

The US Department of Justice, although agreeing with the RIAA that the award was constitutional, urged the Court to avoid the constitutional question by instead addressing the question of whether the verdict merited being set aside on "common law" grounds, as being "shocking to the conscience".

Ms. Thomas-Rasset filed a brief opposing the RIAA's motion to amend the judgment by adding an injunction.

Plaintiffs' Opposition Memorandum
DOJ Opposition Memorandum
Defendant's Opposition Memorandum

[Ed. note.

1. The US Department of Justice (a) continues to debase itself by misstating the law in its unseemly haste to provide cover for the RIAA, and (b) sinks to a new level of debasement by arguing that an award of 228,000 times the actual damages satisfies due process standards. Its awareness of the frivolousness of its constitutional argument is betrayed by its urging the Judge to reach the same result -- the setting aside of the verdict -- on non-constitutional grounds, the "common law" ground for remittitur that the verdict is "shocking to the conscience". A complete answer to all of the legal points argued by the DOJ's frivolous brief is found in the amicus curiae briefs which we filed in SONY v. Tenenbaum and SONY v. Cloud.

2. The RIAA's brief is another in the long line of frivolous briefs they have filed, arguing that the size of the verdict can be measured against all of the damages the plaintiffs have suffered from all of the copyright infringements since time immemorial, and wallows in speculation -- unsupported by any actual evidence and based solely upon two inhouse lawyers' opinions -- as to how much actual damage Ms. Thomas-Rasset's alleged 24 downloads caused.

3. Both the RIAA and DOJ briefs take the "ostrich" approach to the Supreme Court's jurisprudence regarding due process standards for "punitive awards".

4. The defendant's brief correctly observes that the court was under no obligation to tack on an injunction to its ludicrous $1.92 million money judgment.

-R.B.]

Commentary & discussion:

p2pnet.net
cNet
TechDirt
Slashdot





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posted by Ray Beckerman @ 8/15/2009 12:47:00 PM 7 Comments Links to this post

Bill Patry, who published a well respected copyright blog, and then ceased publication, has started up a new copyright law blog entitled "Moral Panics and the Copyright Wars". Welcome back, Bill.

-R.B.



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posted by Ray Beckerman @ 8/11/2009 09:54:00 PM 0 Comments Links to this post

In the abuse of process class action in Oregon, Andersen v. Atlantic Recording, oral argument of the plaintiff's motion to certify a class and defendants' motion for summary judgment is scheduled for October 19th:

Scheduling Order by Judge Anna J. Brown. Oral Argument regarding Plaintiff's Motion to Certify the Class 120 and Defendants' Motion for Summary Judgment 127 is set for 10/19/2009 at 09:30AM before Judge Anna J. Brown. (sm) (Entered: 08/03/2009)

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posted by Ray Beckerman @ 8/10/2009 09:45:00 PM 3 Comments Links to this post

The pro se Maryland case, UMG Recordings v. Ceesay, was dismissed without prejudice by stipulation.

Stipulation of voluntary dismissal without prejudice



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posted by Ray Beckerman @ 8/10/2009 09:40:00 PM 2 Comments Links to this post

It appears that SONY BMG Music Entertainment v. Simms, an Atlanta, Georgia, case against a pro se litigant, has been settled. The terms of the settlement are not known.

Stipulation of Dismissal Without Prejudice



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posted by Ray Beckerman @ 8/02/2009 08:48:00 PM 7 Comments Links to this post

The long running St. Louis, Missouri, case, Atlantic Recordings v. Raleigh, has been settled. The terms of the settlement are not known.

Stipulation of Dismissal With Prejudice



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posted by Ray Beckerman @ 8/02/2009 08:42:00 PM 0 Comments Links to this post

A statement by Joel Tenenbaum has been posted by the SONY BMG Music Entertainment v. Tenenbaum defense team that they are changing their policy about contributions, and that any contributions received so far will be used to defray defense costs, and will not be paid to the RIAA.

The statement further states that "If money remains beyond that, I am open to a discussion with Charlie, Ray Beckerman, and our supporters (you donated it, after all) as to what to do with the rest of it."

Complete statement

[Ed. note. Kudos to Joel and the "Joel Fights Back" team for reversing course. My recommendation as to what to do with the money is to contribute it to the FSF's expert witness fund, which is helping litigants to retain tech experts and consultants to debunk the RIAA's unreliable "evidence". See, e.g., "UMG Recordings v. Mavis Roy case settled, with help of expert witness report ripping Jacobson & MediaSentry". -R.B.]

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 8/02/2009 06:30:00 PM 1 Comments Links to this post

In my last Friday's wish list for the SONY BMG Music Entertainment v. Tenenbaum trial, I isolated the issues which I felt required resolution. Have any of them even been dealt with? Here are what I felt should be the central issues at this trial, in which the defendant had admitted using Kazaa file sharing software to download song copies:

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))

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posted by Ray Beckerman @ 8/02/2009 11:55:00 AM 4 Comments Links to this post

I received an email which said the following:

Debbie Rosenbaum sent a message to the members of Joel Fights Back Against RIAA.

--------------------
Subject: Verdict is in ... $675,000

As many of you have already heard, a verdict came in yesterday against Joel for $675,000.

A grassroots campaign was started earlier today by individuals who aspire to help raise money in order for Joel not to have to file for bankruptcy. The idea is that if every file-sharer donated $.99 or the price of a few albums, a resounding message could be sent to the RIAA from the court of public opinion.

Because many people have been asking, we wanted to share the location where money is being collected: http://www.facebook.com/l/;www.joelfightsback.com.

Constant updates from Joel and his team at http://www.facebook.com/l/;www.twitter.com/joelfightsback.

debbierosenbaum: inspired by the global support coming into @joelfightsback and the grassroots campaign to raise the $675,000 my client @jesusina owes. #JFB

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posted by Ray Beckerman @ 8/01/2009 11:19:00 PM 15 Comments Links to this post

BY MARC BOURGEOIS

Jury finds Joel Tenenbaum willfully infringed Plaintiffs copyrights in all thirty works. Awarded $22,500 per work for a total verdict of $675,000 for the Plaintiffs.

Docket entry for day 5 of trial:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 5 (Frid) held on 7/31/2009....Dft's call Wayne Marshall; PLF & DFT RESTS; Closing arguments begin; Jury Charge; Exhibits 1-59 stipulated on record; exhibits to jury room, deliberations begin. Jury Verdict Returned in favor of the Plaintiff's, see jury verdict for details. All exhibits returned to counsel, jury excused, court adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Molloy, Maryellen)

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posted by Marc W. Bourgeois @ 7/31/2009 05:42:00 PM 27 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum the jury instructions have been filed.

The jury was instructed that they could award from $750 to $150,000 per "act of infringement" (not per work as the law requires). The jury was given no guidance as to what would constitute an infringement of the "distribution" right.

Jury instructions

[Ed. note. This trial was a complete waste. The jury is being instructed to return a huge verdict, and it appears that none of the actual issues which were inherent in this case have even been touched upon. Very sad. -R.B.]



Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 7/31/2009 03:19:00 PM 3 Comments Links to this post

BY MARC BOURGEOIS

Defendant

Professor Nesson began his closing by telling a story about his first court case. He said that he was cited for a left turn violation in Cambridge. He went to court, plead guilty and was fined $20, and the judge told him he had the right to appeal. He appealed and the judge sent him aside and waited for all of the other proceedings to complete. The judge them called him up and asked why he plead guilty then appealed. He said that he thought $20 was too much for a left turn. The judge laughed and told the clerk to cut it to $10. He said this was his first victory in court.

He said that the case was about damages, and about the justness of the damages to be awarded by the jury to the Plaintiffs. He argued that just had to do with justice and that the punishment fit the crime. He told the jury they were the root of the people in the justice system.

He placed on the document camera for the jury a copy of the jury instruction about statutory damages. He explained that the Plaintiffs did not have to prove actual damages but were entitled to statuatory damages as they, the jury, considered just.

He then began talking about the testimony of Dr. Liebowitz and his testimony that open sharing resulted in a decline in revenue for the recording industry. He stated that peer to peer networks rapidly changed the music industry. He said that progress happens. Joel Tenenbaum is not on trial, not peer to peer networks. He argued the damage was what Joel did and what the appropriate response.

He then began to talk about parenting, and sharing being one of the first things parents teach their children. He asked the jury to imagine a parents job and went into a bit of detail. He said that music is something children naturally share, they sing songs together, and share music. He then said that parents must go on to teach their children about property. He explains that the concept of property is easy to grasp with real property. When something is taken away from one person they no longer have it, that the taking away is a trespass. He explains the difficulty of teaching children about intellectual property.

He went back to the Jewelry store analogy offered by Dr. Liebowitz. During Dr. Liebowitz's testimony he mentioned that one possible way the Jeweler's property rights could be weakened is if Captain Kirk came by and said "Scotty beam me up some jewels". Professor Nesson likened this to file sharing and said it was like "Scotty beam me up some free music". He explains that parents are expected to teach about intellectual property but it is a hard thing to explain and even harder to police.

Professor Nesson then turned to Dr. Liebowitz's sports analogy in comparing the weakening property rights to less professional music being produced. He stated he didn't completely agree with his characterization of professional always being superior to amateur and gave the example of March Madness often being more interesting and compelling that seeing a Celtics game. He states he's not completely sure we are better off if there is more professional music being produced, but explains that we are perhaps better off with more overall music.

He then turned to the testimony of Mr. Wilcox. Mr. Wilcox stated how the music industry struggled encasing their product in encryption and explained that Mr. Wilcox used the term "compatibility". He explained that the consumer didn't want encrypted music, but wanted something that was compatible with all of their devices and could be used. Professor Nesson argued in a sense that the market demanded the mp3 format, but that it wasn't available from the music industry until 2007. He argued it was not the case in 2004 that the recording industry had a comparable product to the free mp3. He said that that didn't necessarily mean that Joel would have paid for this product in 2004, but maybe he would have.

Professor Nesson explained that Mr. Wilcox's story about the industry moving from a CD environment to a digital environment and explained that it was in a way a story that paralleled Joel's, moving from a skateboarding kid to where he is now in the process of coming of age. He asked the jury who should be blamed for the difficulty that the internet presented them.

He then moved to the damages component. He asked the jury to consider the nature of the infringement. He explained many levels of infringement from the top end criminal counterfeiting syndicates to the middle ground people who did it to harm the recording industry but made no money, down to the people like Joel who made no money and had no intention of hurting the recording industry.

He explained that this was a civil case and the first time Joel had been to court. He likened it to other first time civil offenses such as underage drinking, and smoking marijuana.

He returned to the jury instructions on what they could consider in awarding damages. He went through all of the factors listed, but spent the most time on purpose and intent and the profit/saved expense of the defendant. He argued that the purpose and intent was to enjoy free music and had no maliciousness. He stated that there was no profit by Joel and only potentially the slightest saved expense. He argued that the harm caused specifically by Joel was low, because if Joel had gone offline there would have been thousands of other copies of these track available for others to download. He argued that Joel was not the original seeder of these files and his absense would not have deterred anyone from getting these files from peer to peer networks.

He referenced revenue numbers by Plaintiffs, but stated that the value of the copyright to the lay person, Joel, was what the songs could be purchased for $.99.

Professor Nesson offered the jury the proposition that Joel was addicted to free music and didn't want to leave it since he already has a functional method of paying for music. Professor Nesson then explained the PR campaign. He said that Joel recieved the message by PR in increments until it eventually sank in and he stopped his conduct. He explained that it was up to the jury to determine if that plays in to the damage.

He then explained the factor of deterrence the jury could use in deciding the award. He argued that there was no need to deter this defendant any more and that the Plaintiffs were looking for a deterrent effect to target a generation. He argued that they were not in this for the money since they had testified that they lose money on this campaign.

He said that this wa a federal case about a kid in his bedroom on a computer screen. He argued the the recording industry was trying to send a message to all of the Joels in the world. He used an economics analogy and said that if you had a situation where there was a lot of parking violations but only one police officer who could not enforce them all and economist would argue for a very large penalty on one, so that others will be deterred and frightened to violate the law. He argued that this is what the Plaintiffs are attempting in this case but that it would not be justice.

The asked the jury then to consider other factors in the award. He asked them to consider the arbitrariness in selection of Joel by MediaSentry. He asked the jury to consider the arbitrariness in the selection of the number of songs to pursue in this case. He asked the jury to consider the fruitlessness of this campaign that had gone on for several years and was now at a dead end.

He asked the jury to consider justice in the bottom line of their verdict form. He told the jury that if the number at the bottom of the form is appropriate then they are doing there job, and if it isn't then they didn't do their job.

Professor Nesson then explained the form and told the jury that if they thought it was just they could fill in zero for the amount of damages. This statement was objected to and the objection was sustained.

He used an analogy for a punishment a parent might set out if they caught their child smoking cigarettes. They tell their child if they are caught that they will be fined $10. He says that the parents later find and empty pack of cigarettes with their child, and a pack with only ten cigarettes left. He asked if the parent should charge $10 or say that there were 30 cigarettes smoked and charge $300.

He told the jury that it was for them to decide justice and reminded them that it was not Joel who created the open internet or peer to peer.

He told the jurors that Plaintiffs were going to ask them to send a message. He asked them to send a different message.

He then closed by telling the jurors that it was the last he was going to be able to speak to them and told a story. He said that a child went to an old wise man with a bird in his hand and asked the man if it was dead or alive. The man knew that if he said the bird was alive the child would crush it and if he said it was dead he would open his hands and have it fly in his face so he simply told the child that "the bird is in your hands". He then told the jury that this case was in their hands.

Plaintiffs

Mr. Reynolds began by thanking the jury for their service and commended Professor Nesson for being a very eloquent speaker especially with very few notes. Mr. Reynolds also wanted to tell a story about his first interaction with the law. He stated he was not as successful as Professor Nesson. He explained that he store a Charms Blow Pop from a 7-11 when he was a child. He was taught a lesson by that event that he was not supposed to take.

He argued that Defendant said this case was about a new digital world, but that none of that was true. He explained that the Defendant had lied on his written responses and he knew what he was doing, and that he had refused to take responsibility for years before finally admitting responsibility yesterday. He submitted to the jury that they had proven all four elements for copyright infringement and that the infringement was willful. He stated that the Plaintiffs had the burden of proof but he believed they had more than met that burden. He stated that there was evidence of his willfulness in his repeated warnings, starting from when Napster was shut down, the information he received from his college, and his father telling him to stop the activity.

He then turned to the issue of sharing. He said that this was not sharing, this was copying. He said that he was warned in a 2005 letter of this activity and its harm. Mr. Reynolds argued that he did not stop or consider, but rather increased his activities after this. He offered the evidence that the Defendant had moved from one file sharing application to another because he wanted to get the most free music with the least amount of effort.

He then argued that in some instances the Defendant acted the same was as a pirate ripping group with the example of the Deftones David Letterman performance he recorded and placed on to KaZaA. He also stated that Mr. Tenenbaum "Seeded Network Neighboorhood" at his college with music. He also offered the evidence of Defendant having Windows reinstalled on his computer by Best Buy after he knew Plaintiffs were trying to inspect his computer as evidence of Defendant's continuing disregard.

He turned to Mr. Nesson's argument that he was a first time offender, but argued that he was not a first time offender but in fact had been doing this for years and continued for years afterwords. He then said that Defendant had for years failed to tell the truth in this case. He lied on written responses, he lied when he told Plaintiffs that the computer from his bedroom in Providence was gone.

Mr. Reynolds argued that the Defendant had blamed others and wasted time and effort with lies and misdirection. He told the jury that the Defendant still had copies of the songs, and that this entire time he has never said that what he did was wrong.

He then argued about the assertion that the Defendant was just a kid. He said that Defendant had turned 19 in 2002 and had been an adult the entire time this case was taking place. He argued that his infringing activities continued until Defendant was at least 24 years old. He furthermore argued that his conduct became worse year after year as he became older. He pointed to evidence from Dr. Jacobson that there were days when hundreds of files were added to his shared folder.

Mr. Reynolds then claimed that Defendants assertion that everyone was doing it was false. He pointed to the deposition of his friends, and the student government movement at Goucher college that not everyone was engaging in this type of activity. He referenced Mr. Wilcox's testimony that there were alternatives available to Joel, but he still infringed. He said that Joel wanting music in a more convenient form is no evidence of addition and even if it was that it was no excuse for his actions.

Mr. Reynolds made the argument that the law had no distinction between products of atoms and bits for the purpose of copyright infringement. He turned to the twenty-five files that MediaSentry didn't download. He pitied Dr. Jacobson's numerous awards and activities and again stated his opinion that all twenty-five files were downloaded and distributed by the Defendant's own admission.

He then told the jury that Joel made them all come to this trial, and made many people spend months of effort just so that he could get here and say yes, he did it. He likened this to a wild goose chase.

He asked the jury to apply appropriate liability and award damages to what Joel did. He argued that he distributed music for free and that the harm was significant. He said that this kind of activity made it difficult for his clients to develop new online markets, and cited Dr. Liebowitz's testimony that it weakened their property rights. He cited the executive testimony that the effects on staff were large. He stated that the need for deterrence was great and told the jury that he agreed with Professor Nesson that the amount of the award was in their hands. He asked the jury to hold the Defendant responsible for his actions.

Labels: bymarc

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posted by Marc W. Bourgeois @ 7/31/2009 03:13:00 PM 6 Comments Links to this post

BY MARC BOURGEOIS

The Defendant presented his case in Sony v. Tenenbaum consisting of only a single witness. Dr. Wayne Marshall was called and demonstrated to the jury the current practice of being able to download an mp3 file without any encryption or DRM restrictions from the Amazon.com mp3 store. Defendant also intended to show a YouTube video of the same track as was downloaded and wished to show the process of saving this video with software called KeepVid, but this demonstration was objected to during voir dire and the only demonstration presented to the jury was that of the Amazon.com mp3 download.

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posted by Marc W. Bourgeois @ 7/31/2009 02:17:00 PM 3 Comments Links to this post

The Court has reversed itself and has stated now that it will direct liability in favor of plaintiffs in SONY BMG Music Entertainment v. Tenenbaum. The order draws no distinction between infringement of the reproduction right and infringement of the distribution right.

Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy)

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 7/31/2009 07:29:00 AM 16 Comments Links to this post

BY MARC BOURGEOIS

Testimony in day four of Sony v. Tenenbaum began with the continuing cross-examination of Dr. Stanley Liebowitz

Professor Nesson continued his questioning from a point that he offered he and Dr. Liebowitz both agreed, that the recording companies began having declining revenues at a point after which Napster made file sharing ubiquitous and due to the weakening of the property rights of copyright holders. Professor Nesson asked that given the new situation that had emerged if he believed that it was true that the same companies may not emerge as leaders when a new business plan plays out as the companies that were previously the leaders. He asked the Doctor about an opinion he offered in his 2001 book that DRM would be a part of the future of the music business. Dr. Liebowitz responded that he was hopeful that DRM would be successful in restricting the ability to copy music so that it would strengthen the property rights of the copyright holders, but stated that DRM turned out to provide only limited protection because it was relatively easy to defeat, such as by burning CDs. He then asked about when the industry first offered a product that was not restricted, and was comparable to the open MP3 file, he testified that he thought this happened in the 2007 time frame.

Professor Nesson asked Dr. Liebowitz to explain to the jury an example in his report which used a jewelry store. He explained his analogy of one where a jewelry store owner was continuously robbed, thus forcing the owner in to a different business model, such as selling for another store. He generalized that this was a similar weakening of property right which was detrimental to society because it would force someone in to an unanticipated occupation, which despite how successful they may be at it would be a loss to society because it prevented someone from being in the occupation they desired. Professor read in to this analogy comparing it to a store with no locks on the doors or other methods by which it would be robbed or an alternative product to jewels. Under this testimony Dr. Liebowitz maintained his position, but did say that under a system where people have strong enough will to break the laws relating to strong property rights that there may not be an enforceable system which gives people the strong property rights they once enjoyed.

He was asked if it was his position that if there was a weakening of property rights that it led to a decline in production in general. He agreed, and stated that this weakening of property rights likely led to a drop of production in sound recordings in general. He was asked if other experts in his field believed that the dip in record sales was not due to file sharing, and offered Oberholzer-Gee's paper as an example of a economist who disagreed with his position. He questioned Dr. Liebowitz on an assertion in an Oberholzer-Gee paper that stated the number of annual music albums released doubled since 2000. Dr. Liebowitz said that he believed these numbers were not necessarily reliable because it only included the number of releases registered with Nielsen, and not necessarily the number of professional quality albums released, which could not necessarily be compared since in previous times it would not be possible to come by numbers for the number of amateur quality music released and thus the current numbers from Nielsen would be comparing apples to oranges with previous numbers they released.

He then went in to a sports analogy to explain his proposition about professional quality versus amateur quality albums released. He explained that if the market for professional quality sports went away because due to some market change professional sports franchises could no longer sell tickets or make money from broadcasting that it would not eliminate sports being played, since there is plenty of amateur sports being played where the participants do not make money, but since money is being paid to professional sports that the market overall prefers these kind of sports. He explained that if the property rights of the professional franchises were eliminated it would be a harm to society because the professional tier of sports would go away and would likely impact the total production of sports for the marketplace.

He was then asked about the network effect, whereby the more people that have access to technology the more overall value the whole technology had. He explained this with an analogy to the telephone, but concluded that a network effect due to file sharing was not likely.

Upon redirect Dr. Liebowitz was asked if he agreed with the opinions provided in the Oberholzer-Gee paper. He responded that he did not. He was asked if there was any reason to believe that the specific plaintiffs in this case would be companies that would not survive in the new marketplace that was emerging, to which he also replied that he thought there was no reason these companies should fail.

Joel Tenenbaum

The main witness of day four was the Defendant, Joel Tenenbaum. Joel was asked basic questions about where he currently lived, as well as where he had previously lived, and what computers he had both at his Providence home and in college. He said nothing surprising about his computer at home or at college that hadn't been revealed in previous testimony. He also testified that he had used the sublimeguy14 username, admitted that he had used KaZaA, and that the KaZaA shared folder in the screenshots from MediaSentry were his. He also testified that it was not uncommon for him to see other people uploading files from him on the KaZaA traffic tab. Mr. Reynolds then asked the Defendant about the case that was against him. He testified that he first found out about the case from his mother. He was asked about his responses to interrogatories which asked who else may have used his computer or KaZaA and requests for admissions about file sharing use. His answers to both stating no knowledge were shown to the jury to each of these questionnaires.

The questioning then turned to his deposition testimony where he stated that there were many people who could have used his KaZaA account, friends, other people who had stayed at his house, etc. He also testified that he had never actually seen any of these people use KaZaA. He was then asked about his musical tastes and asked if he liked several artists that appeared in the KaZaA shared folder. He testified that he had burned CDs of the music in his shared, and testified that he had ripped CDs to his computer. He testified that he had never filled in the "comments" meta data on any of the files ripped to his PC. He testified that he may have changed the meta data on some files to be consistent with others for it to be easier to find in music programs, but did not do so for much of the music that he had.

Joel was asked about a video he had recorded from a Deftones performance on the David Letterman show. He testified that he had recorded this video and put it himself in to his KaZaA shared folder and made it known on a Deftones forum that he had done so for others to download it from him.

Joel was then asked about his computer and music usage habits at Goucher college, where he stated he and other students had used the Network Neighborhood feature of Windows to share music with one another in college. He was shown numerous items from Goucher college warning about copyright infringement and peer to peer file sharing, all of which he admitted to having received at some point as a Goucher student. He was asked about other file sharing software such as Napster, LimeWire, and iMesh and admitted that he had used them all. He testified when asked that he did all of this to recieve the most amount of music with the least effort.

Joel was asked about his letter to Plaintiffs after initially learning that he may be sued for copyright infringement. The letter included a line stating he was not near his computer in Providence at the time of writing, but would return later and delete any copyrighted material if it existed. He was also asked about the inspection of his computer and the re installation of his computer, which he stated he took to Best Buy to have done while inspection was pending, but asked Best Buy to preserve all of the music because of the Plaintiffs inspection which was potentially pending. He stated that he took this to be done because the computer wouldn't boot up anymore. He was asked if he had any reason to disbelieve anything in Dr. Jacbson's report stating that he didn't because Dr. Jacobson was "a competent professional". He testified that he had listened to, talked about, made mixes of, and made available for distribution all of the music in his shared folder.

On cross-examination Professor Nesson asked Joel about his personal and family history, places he had lived, when he became interested in music, to which he explained with great narrative detail. He testified about his usage of music, including borrowing CDs from friends, making mix tapes from the radio, and purchasing music CDs from record stores. He was asked what he found attractive about Napster to which he said he'd previously used Yahoo! search to attempt to find mp3 files, but it was much easier when Napster came about. He testified that he was not the person who originally installed Napster on his computer in Providence. He explained that Napster was a giant library of songs in front of you and "the Google of music". He stated he did not have a sense that it was illegal at the time he was using it. He also stated that his friends also used Napster, and he was never insterest in hurting the artists and record companies.

Professor Nesson asked about Joel's high school life and how he used music throughout that time period, which he described driving around with his friends listening to music in his car, and was asked about his car which he testified that he and his father had installed a good deal of upgraded stereo equipment in.

Joel testified that also used KaZaA and found it to be similar to Napster in function. He was asked about his letter to Plaintiff and why he didn't remove his music files as the letter said he would. He stated that he intended to, but could not make himself do it after all of the time he had put in to assembling the music collection. He then described what happened at college afterwards, with his college moving more and more year after year at college to make file sharing applications not work, to which he stated that around his junior year none of the applications he had used worked properly anymore. He stated he continued buying CDs during this time period, due to quality issues.

Professor Nesson then turned to issues of the present lawsuit and why he lied on his written interrogatories. Joel said that his answers seemed like the best response to give without a lawyer. He also asked about some of his deposition testimony which he stated that he was less than fully forthcoming in it. He eventually was asked if he was taking responsibility, to which he said, "I did it".

He stated that he stopped in 2007 or 2008 because of problems using filesharing with malware on his machine, encountering spoof file, and because he began using iTunes. He stated that this lawsuit was one of the reasons he stopped using file sharing.

He stated that during the time Plaintiffs accused him of infringement, August of 2004, he was not aware of iTunes. He stated he may have heard of some other music services but that he wasn't in a position to switch his music acquisition to any other method. He was asked if he ever used file sharing for the purpose of selling or any other commercial activity, which he said he did not, that his use was entirely personal.

The redirect was very short, asking about his bringing his computer to Best Buy and if his intention was to destroy evidence by doing so, he stated it wasn't he just did so because it wouldn't run. He was asked about his testimony that he shared music with friends and was asked if his friends with everyone on KaZaA and Napster, which he said he was not. He was asked if he was now admitting liability, to which he said yes.

Ron Wilcox

Mr. Wilcox is with Warner music group and formerly of Sony. He testified as to the sale of music beginning in the early 1980s through the present time. He explained the advent of the CD and that it was not built with any encryption because the threat of copying was not seen as a major threat at that time. He testified as to music industry efforts in the 1990s to explore digital distribution methods, to which he described generally in terms of the amount of effort expended on it, but no specifics. He testified that all the technologies they looked at during this time included some sort of copy protection.

He testified that efforts to add encryption to CDs were never fully explored because it would have left a lot of existing equipment obsolete and they did not believe this would be something that the marketplace would accept. He testified about early forms of DRM such as FairPlay on iTunes.

His cross examination was short, being asked about Warner's reaction to Napster which he said concerned the company because it was an illegitimate free product. He was asked if Warner or Sony ever tried to partner with peer to peer services which he said they had but that the partnerships never went very far because of animosity on the peer to peer side and stated they never seriously wanted to work with record companies in the way that they wante.d

Silda Palerm

Ms. Palerm's testimony was to authenticate the Warner tracks at issue in the case. The only other issue she testified to was that Warner had had an over 50% reduction in force since the year 2000. On cross examination Mr. Feinberg asked if the reduction in force was at all attributable to the economy. Ms. Palerm stated her opinion that since the bulk of reduction in force was prior to the economy having trouble that she believed it was due to file sharing.

After Ms. Palerm Plaintiffs ended their case.

Plaintiffs after the conclusion of their case moved for a directed verdict on the issue of copyright ownership, liability, and willfulness. Defendant conceded ownership, but not any of the other factors. Judge Gertner indicated she was inclined to direct on the issue of liability based on testimony but still planned to go to the jury with willfulness and the award. The Defendant indicated that they will likely wrap up their case by mid-morning on Friday, after which there will be closing arguments. Plaintiffs indicated they only needed 20-30 minutes for their closing.

Court's docket entry for day 4:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 4 (Thurs)held on 7/30/2009....p-8 Liebowitz testimony resumes; P-9 Joel Tenebaum; P-10 Ron Wilcox; P-11 Silda Palerm; Jury excused; Plt moves orally for Rule 50 mtn-under advisement..(see endorsement dated 7/31/09 for ruling), ct adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Gaudet, Jenn for M.Molloy)

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posted by Marc W. Bourgeois @ 7/31/2009 01:51:00 AM 0 Comments Links to this post

Defendant has submitted a proposed jury instruction on damages in SONY BMG Music Entertainment v. Tenenbaum.

Defendant's proposed jury instruction on damages



Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 7/30/2009 07:52:00 PM 0 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the Court ruled that all issues other than copyright ownership will be left to the jury.

Judge Nancy Gertner: Electronic ORDER entered with respect to Rule 50 motion: The Court will make required findings concerning copyright ownership, but leave all remaining issues -- infringement (reproduction and distribution), damages and willfulness -- for the jury, out of an abundance of caution. The Court does so in part because the statutory damages inquiry obliges the jury to consider some of the same issues as the infringement inquiry, i.e. the nature of the infringement. (Gertner, Nancy)

Commentary & discussion:

p2pnet.net






Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 7/30/2009 07:45:00 PM 1 Comments Links to this post

In SONY BMG Music Entertainment v. Tenenbaum, the plaintiffs have filed a response to proposed jury instruction no. 110.

Plaintiffs' response to jury instruction no. 110



Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

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posted by Ray Beckerman @ 7/30/2009 10:41:00 AM 2 Comments Links to this post