Monday, June 29, 2009

Defendant seeks leave to call ethnomusicologist Dr. Wayne Marshall as expert witness in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the defendant has sought leave to file an expert witness report of Dr. Wayne Marshall, an ethnomusicologist who is presently a Mellon Fellow at MIT.

Expert Report of Dr. Wayne Marshall
Curriculum vitae
Motion for Leave to file Wayne Marshall report

Commentary & discussion:

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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

11 comments:

Eric said...

So the Plaintiff's are already opposing one late expert witness and now Defendants are bring another to the table... this should be good for another round of motions.

Anonymous said...

Wasn't there a June 22 deadline for submission of expert reports in this case, or am I getting my cases confused? Also, why is this report not signed?

-fj

Anonymous said...

I worry for Joel. The brief is interesting on an academic level, but it will only further obfuscate the the legal principals in the case -- which I believe are firmly on the defendant's side if argued competently.

Looking at the coverage of Jamie's trial, it's obvious that people are still under the impression that she was sued for downloading when she was actually sued for distribution. Now, this expert is going to fold "listening" as a fair use into the mix? It will only further confuse the jury as to what this trial is really about, alleged distribution. There is no evidence of that, none, and that is where the jury should be focused. Confusing the jury is not likely to work in the defendant's favor.

lost in thought

Anonymous said...

Headline is misleading. There's no way this yahoo will be allowed to testify. Not only is the disclosure woefully late for purposes of the Rules of Civil Procedure, but his proferred testimony is totally irrelevant to anything at issue in the case.

-Burt

Ray Beckerman said...

Dear Anonymous Burt,

I agree that the headline was misleading, and have corrected it. Since it had been filed without a motion, I assumed this was something that had already been in the works and received judicial approval. That assumption was unwarranted.

Later in the day defendant served a motion asking for permission, thus indicating that this was indeed something new.

I would disagree with you that his testimony is irrelevant to any issue in the case, as I can immediately think of several to which it would be relevant. Bear in mind, for example, that the Court has expressly ruled that it will not rule summarily on either fair use or due process, and will decide those only upon a full factual record of a trial of the merits. This material would be relevant to both. There are probably others too to which it might be relevant.

As to whether the Court will exercise its discretion to allow this relatively innocuous testimony, submitted beyond the deadline, remains to be seen.

Anonymous said...

Ray - according to your buddy Sheffner, this dude is Charlie's son-in-law. Which makes it even harder to understand why it took him so long to figure our that (i.e. "focus" upon) the revelation that he had something relevant to say.

So music is a shared and social activity? Copyright law be damned? Gimme a break.

I'm on Joel's side but this is getting ridiculous...

Ray Beckerman said...

It appears that Anonymous Burt is a troll. I think I even know who he is. But I will leave his first post standing since it accurately corrected my inaccurate initial headline.

Post number 2 has been rejected.

Suffice it to say that fair use is a fact question.

All fact questions can be resolved on summary judgment if there is no material triable issue.

w&w (aka, Wayne Marshall) said...

Thanks for not feeding trolls, Ray -- "yahoo"? jeez. what is this, the internet? -- and thanks for your evenhanded appraisal of my report, even if you disagree about its relevance to this particular case. I'm currently working on a blog post attempting to further contextualize the matter, just FYI. And I'd be curious to hear to which cases you DO think these ideas might apply.

Ray Beckerman said...

I rejected another comment from Anonymous Burt.

It is not trolling to debate or disagree. It is trolling to hide your identity when you are someone who has a vested interest. I have a pretty good idea who you are, Anonymous Burt. Why aren't you man enough to come forward and reveal your identity?

Please review the comment policies, coward.

Anonymous said...

"It is trolling to hide your identity when you are someone who has a vested interest."

I'm neither involved in the litigation nor have any stake in the outcome. I am also not sure how you come to believe so when I'm merely correcting misstatements with actual language from the Orders or case law.

"I have a pretty good idea who you are, Anonymous Burt."

And like your predictions in general, you'd be completely wrong.

"Please review the comment policies, coward."

I am in compliance with the anonymous posting guidelines. If I'm somehow in violation of #3 by disagreeing with your descriptions of matters when court orders and case law say otherwise, then the problem is your's and not mine.

-Burt

Anonymous said...

Burt, "yours" is spelled "yours", not "your's".

-Grammar Freak