Tuesday, July 28, 2009

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.]

5 comments:

T2 said...

Marc --- thank you for the summary.

Prof. Nesson's opening statement is a fine diatrebe on file sharing in general, but I very much doubt it provides effective defense in a Court of Law (other than one in Boston Legal or other fictional settings). In front of the highest courts, one can present fairly general and abstract arguments with some latitude, but lower courts are more focused on the fine points of the Law. This appears to me like a repeat of the earlier presentations in front of a higher court regarding whether proceedings can be televised/broadcast: specific points of law from the RIAA (however warped to meet its goals), grand (and long-winded) arguments from Prof. Nesson. And it was RIAA who got its way that time.

Poor Joel.

Jadeic said...

I would be very interested in the actual words used to describe MediaSentry's relationship with the Plaintiffs, reported in Marc's account as 'hired', for if that is so then it is the missing evidence needed to establish the illegality of MediaSentry's operation in the eyes of the DLEG.

Leopold said...

Nesson's best explanation of the situation is a cube?

Seriously?

Anonymous said...

I see the term "hire" and all i can think of is the case in my home state of michigan. They dropped the investigation of media centuary because they could not find proof of being paid for their service. I know this is just a summary, but i wonder if the full transcript might be able to be used as proof of payment to media centuary or at least raise enough questions to get them looking back into the situation. Any thought on that?

Steve

Anonymous said...

Anonymous/Steve has a very interesting point. See here: http://recordingindustryvspeople.blogspot.com/2009/07/michigan-agency-drops-mediasentry.html