Friday, July 10, 2009

RIAA moves to keep revenue information secret in SONY v. Tenenbaum

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

Background:

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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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

14 comments:

Interested said...

It's as if some junior associate printed out a boilerplate motion and didn't fill in the blanks. What exactly is so confidential about revenue information? A little more analysis, please.

And why should the judge protect chain of title documents, when those are central to any defenses regarding defects in the chain of title?

I mean, there's no harm in trying, but why not give it a good college try.

Anonymous said...

I'm a bit confused on how this will make it more costly for other lawyers to obtain this information. The RIAA does not appear to be disputing that the information can be discovered at all, only that it not be disclosed publicly by defense counsel. Wouldn't any other defendant to whom the information is relevant be able to simply request discovery of identical information under the terms of a similar protective order? The much bigger point seems to be that since the record company plaintiff's are each others' competition, a protective order would be essentially useless since the information produced to the defendant would also then be available to the co-plaintiffs as well. Or is this incorrect?

Anonymous said...

Plaintiffs admit they have not turned over documents as of the date of their motion. And they admit it's due the same date as their motion.

I imagine defendant could file a motion to compel production, and at the same time ask for sanctions or in the alternative move for permission to file an objection to their request for protective because on some kind of procedural grounds - unconscionable delay in filing an objection, or something similar.

I wonder if defendant could also respectfully invite the courts attention to plaintiffs failure to produce and ask the court to find plaintiffs in contempt? Or is a finding of contempt solely in the discretion of the court?

-Quiet Lurker

derivative said...

Under normal circumstances, I could agree it might be justifiable for a court to order secrecy to keep competitors' financial information from each other.

But, under normal circumstances, I wouldn't expect all the competitors in a given market to be ganging up together suing one of their customers.

So, these aren't normal circumstances, and these aren't normal competitors. They are a cartel, which is purchasing wholesale litigation. If they want to keep their financial information secret, let them file individual suits and purchase their litigation at retail, like everybody else has to.

Personally, I think corporations should have fewer rights than humans, and combines of corporations fewer rights still.

Ray Beckerman said...

Dear Anonymous Fez,

Why don't you read the relevant materials first, before speaking?

The Court's ruling ordering production of the revenue information related to fair use:

However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, 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." (Gaudet, Jennifer)

Anonymous said...

Derivative, Fez:

Certainly financial information is a core matter in this case. The RIAA claims it was hurt by Defendant's use of P2P. If it wasn't, or if it was hurt only a very small amount, then (I believe) it is only entitled to relatively minor statutory damages, if any.

Ray and other defense attorneys have written about this issue on many occasions, Fez, so you should check the archives.

XYZZY

Ray Beckerman said...

This discovery is related to fair use, not to the due process defense.

Christopher said...

Fez, it -is- a core issue at hand. They may be suing for statutory damages, but statutory damages are supposed to reflect what actual damages would have been. Defendant has a right to some insight into what that is. If the plaintiffs want a $1 million damages award, they should be forced to demonstrate to the court why Tenenbaum's actions justify their receiving such an award.

The massive statutory damages are meant for commercial infringers, ie: somebody burning pirated movies onto DVDs and selling them at a handsome profit. A group up in Toronto was running a counterfeiting outfit from a strip-mall selling up to $21 million / year in pirated DVDs. These guys were making massive money off of copyright infringement, and this is where a massive damage award may be necessary.

But was Tenenbaum making millions of dollars a year by selling thousands of music CD's that he allegedly downloaded? No. It sounds like he was a harmless non-commercial infringer who downloaded/uploaded a handful of songs... of course they don't even have proof that he uploaded songs to anybody other than MediaSentry, right? And yet you're saying its inappropriate to probe how much money they've really lost because of it?

How can anybody say that he deserves to be penalized upwards of $150,000 per song without some serious justification?

It boggles the mind.

derivative said...

XYZZY:

I didn't intend to imply that financial information isn't germane to the case.

The only thing the motion addresses (and by extension the only thing I addressed) was whether the financial information can be kept secret from everybody except the defendant. As I wrote, I believe that court parties normally have a rational expectation that their financial information will be treated sensitively by the court.

But, in this area, as with countless other areas, the RIAA takes the normal goodwill of the court and abuses it. They are kind of like SCO in that respect. No judge who wasn't following the broader story line closely for a very long time could possibly understand exactly how much these attorneys are gaming the system.

If any legitimate reason exists for these companies to keep this information secret, it is only to keep the information secret from their competitors (in other words, each other). As Ray points out, the more pressing, illegitimate,reason to keep this information secret is to drive up the costs for the defendants in subsequent lawsuits.

As I was trying to say earlier, if these corporations want to be treated as distinct entities by the court who don't have to share information with each other, then they shouldn't be able to share lawsuits or lawyers or investigative resources, either.

Anonymous said...

Fez DOES make a good point though.... "pushed by the defense in order to detract attention from the core of the litigation." The attention SHOULD be on the core of the litigation, that being the unethical behaviour, the lack of moral compass, and the extreme greed of the "Big Four". And those mercenaries who support the RIAA and their sham litigation should also be on trial here for aiding and abetting.

Oldphart in Kansas

Ray Beckerman said...

I will remind you that the ACTUAL reason the revenue information is being produced is set forth in the Judge's order. Its sole relevance at this point in the litigation is fair use.

Any further comments implying that it was ordered for any other purpose will be summarily REJECTED.

Ray Beckerman said...

It appears that anonymous Fez was a troll. Accordingly his comment was deleted.

Donald said...

I'm a bit confused on how this will make it more costly for other lawyers to obtain this information. The RIAA does not appear to be disputing that the information can be discovered at all, only that it not be disclosed publicly by defense counsel. Wouldn't any other defendant to whom the information is relevant be able to simply request discovery of identical information under the terms of a similar protective order?
Simply put it will be because 1) Everytime they are allowed to continue use of this tactic it prolongs the case and number of hours spend trying to get discovery 2) The RIAA will most likely use any ruling of confidentiality as a basis in other cases as a reason not to have to even produce the information and 3) If it becomes open evidence in this case it will be available without a court order in other cases

Anonymous said...

@Donald

and you forgot the all important item #4, they are a bunch of scoundrels that attempt to make this process as difficult as possible.

SCNR