In SONY BMG Music Entertainment v. Tenenbaum, the RIAA filed its "response" to the Judge's question as to whether fair use fact issues were triable to the jury or the judge, and defendant filed his pretrial memorandum. The trial is scheduled for Monday, July 27th.
Plaintiff's response re fair use jury trial question
Defendant's pretrial memorandum
Exhibit A witness list
Exhibit B exhibit list
Exhibit C requested jury instructions
[Ed. note. Although I should be surprised at nothing in this case, I am shocked by both filings.
(a) The RIAA totally ignored the judge's order, and instead used this as an opportunity to put in an additional, unauthorized brief on their summary judgment motion. They never even answered the judge's question, which was whether fair use fact issues are triable to the jury or to the judge. If I were Judge Gertner I would not be pleased by such disrespect and gamesmanship.
(b) The defendant's requested jury instructions contain almost nothing on any issue except fair use. If I were Judge Gertner I would be displeased that defendant's lawyers are leaving it up to the Court to come up with all of the sensitive jury instructions on its own.
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