Recording Industry vs The People: In Tenenbaum Prof. Nesson files 'response' to order, & court schedules hearing on deft's motion to compel pltffs to respond to interrogs

Wednesday, June 24, 2009

In Tenenbaum Prof. Nesson files 'response' to order, & court schedules hearing on deft's motion to compel pltffs to respond to interrogs

In SONY BMG Music Entertainment v. Tenenbaum, the Court has scheduled a June 29th hearing on defendant's motion to compel the plaintiffs to respond to the outstanding interrogatories, and Prof. Nesson has filed a "response" to the Court's June 16th order.

Docket entry for hearing:

ELECTRONIC NOTICE of Hearing on Motion [852] MOTION to Compel Plaintiffs to Respond to Defendant's First Set of Interrogatories: Motion Hearing set for 6/29/2009 09:30 AM in Courtroom 2 before Judge Nancy Gertner. (Molloy, Maryellen)

"Response" of Charles Nesson to June 16th order

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

10 comments:

Alter_Fritz said...: link does not work; June 24, 2009 at 4:02:00 PM EDT
raybeckerman said...: Only because I forgot to upload the document.

Now it's working fine.

Sorry about that.

Thanks.; June 24, 2009 at 4:05:00 PM EDT
Unknown said...: Is this normal litigation practice?
It seems a bit odd; June 24, 2009 at 4:30:00 PM EDT
Alter_Fritz said...: no problem Ray, and no need to say sorry.
To the contrary, I (resp. we the public) have to say "thanks" for all your efforts to shed the lights on all the stuff that the labels are doing for all those years now.

Thanks!; June 24, 2009 at 4:35:00 PM EDT
jr said...: I think like a lot of things in this case Sebastien this is a bit odd....; June 24, 2009 at 5:03:00 PM EDT
Unknown said...: This document appears to have been somewhat hastily written. Take, for example, the switch from "I" to "i" partway through.

While I respect Dr. Nesson’s credentials and his lectures, this is one of several times I have wondered if his client is not being well served by his presentation (not, specifically, the intent).; June 24, 2009 at 6:19:00 PM EDT
Anonymous said...: Is the lower case pronounc"i" supposed to represent some humility on Charlie's part?

Or does punctuation, along with other rules of gravity, not apply when he is Counsel?

i.e.
"i would like to make it possible for the world to follow this case. i would like every citizen interested in the future of the
net to follow the trial, hear the arguments, listen to the songs at issue, experience the witnesses, deliberate the issues, and learn the law as i believe it can and should be taught and as i do my best to teach it."; June 24, 2009 at 6:43:00 PM EDT
shane said...: I didn't realize that Prof. Nesson didn't have the backing of the Berkman Center. I had assumed he had full resources at his disposal and I'm sorry to hear that he does not. The RIAA has a rather extensive factory for litigation and, it seems to me, no ethical qualms about using it to advance counterfactual claims and estopped arguments, but they they have the salesman's friend, "Volume, volume, volume!!!"

While I've found KAD Camera's motions to be excellent on those points he chose to make, Professor Nesson's have been curious to me, often making grand points that seem to exceed the scope of the issues before the court rather than law the court can act on. In this "response" he seems to have literally stopped dotting his "i's" and crossing his "t's." I still hope fervently the case goes well, and many things have been wrongly decided against him, but this litigation hasn't gone the way I would have expected. It is hard to know what to think.; June 24, 2009 at 9:22:00 PM EDT
SteelWolf said...: The Tenenbaum case seems to be our very own US "spectrial." It seems like it will only precedent-setting if the RIAA wins, which is unfortunate.; June 25, 2009 at 9:00:00 AM EDT
Anonymous said...: Though this response, or whatever it is, may irritate the judge, it should once again show her that the financial playing field is far from level. Will she recognize that that is unfairly hurting Tenenbaum?

XYZZY; June 25, 2009 at 9:26:00 AM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove