The RIAA has made a motion for a protective order to keep its revenue information secret in SONY BMG Music Entertainment v. Tenenbaum.
Plaintiffs' motion for protective order for revenue information
The revenue information was ordered by the Court to be produced in connection with defendant's fair use defense:
to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work"), the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him.
[Ed. Note. This motion is a sham. I sincerely hope Judge Gertner denies it. It is ludicrous for 4 competitors to be jointly moving to keep the information confidential. As any observer of the RIAA litigations knows, there is one and only one reason for making this motion : to make it more costly for other defendants' lawyers to get this information when they need it. I.e., it is part and parcel of the RIAA's strategy of making the costs of defense as high as possible. Hopefully Judge Gertner will see through this rank gamesmanship. -R.B.]
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