Friday, July 31, 2009

RIAA awarded $675,000 in Sony v. Tenenbaum


Jury finds Joel Tenenbaum willfully infringed Plaintiffs copyrights in all thirty works. Awarded $22,500 per work for a total verdict of $675,000 for the Plaintiffs.

Docket entry for day 5 of trial:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 5 (Frid) held on 7/31/2009....Dft's call Wayne Marshall; PLF & DFT RESTS; Closing arguments begin; Jury Charge; Exhibits 1-59 stipulated on record; exhibits to jury room, deliberations begin. Jury Verdict Returned in favor of the Plaintiff's, see jury verdict for details. All exhibits returned to counsel, jury excused, court adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Molloy, Maryellen)

Jury verdict

[Ed. note. No surprises there. See "Have any of the actual issues been dealt with in SONY v. Tenenbaum?"-R.B.]

Commentary & discussion:

Punto Informatico (Italian)

Jury instructions in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum the jury instructions have been filed.

The jury was instructed that they could award from $750 to $150,000 per "act of infringement" (not per work as the law requires). The jury was given no guidance as to what would constitute an infringement of the "distribution" right.

Jury instructions

[Ed. note. This trial was a complete waste. The jury is being instructed to return a huge verdict, and it appears that none of the actual issues which were inherent in this case have even been touched upon. Very sad. -R.B.]

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

Closing arguments in Sony v. Tenenbaum



Professor Nesson began his closing by telling a story about his first court case. He said that he was cited for a left turn violation in Cambridge. He went to court, plead guilty and was fined $20, and the judge told him he had the right to appeal. He appealed and the judge sent him aside and waited for all of the other proceedings to complete. The judge them called him up and asked why he plead guilty then appealed. He said that he thought $20 was too much for a left turn. The judge laughed and told the clerk to cut it to $10. He said this was his first victory in court.

He said that the case was about damages, and about the justness of the damages to be awarded by the jury to the Plaintiffs. He argued that just had to do with justice and that the punishment fit the crime. He told the jury they were the root of the people in the justice system.

He placed on the document camera for the jury a copy of the jury instruction about statutory damages. He explained that the Plaintiffs did not have to prove actual damages but were entitled to statuatory damages as they, the jury, considered just.

He then began talking about the testimony of Dr. Liebowitz and his testimony that open sharing resulted in a decline in revenue for the recording industry. He stated that peer to peer networks rapidly changed the music industry. He said that progress happens. Joel Tenenbaum is not on trial, not peer to peer networks. He argued the damage was what Joel did and what the appropriate response.

He then began to talk about parenting, and sharing being one of the first things parents teach their children. He asked the jury to imagine a parents job and went into a bit of detail. He said that music is something children naturally share, they sing songs together, and share music. He then said that parents must go on to teach their children about property. He explains that the concept of property is easy to grasp with real property. When something is taken away from one person they no longer have it, that the taking away is a trespass. He explains the difficulty of teaching children about intellectual property.

He went back to the Jewelry store analogy offered by Dr. Liebowitz. During Dr. Liebowitz's testimony he mentioned that one possible way the Jeweler's property rights could be weakened is if Captain Kirk came by and said "Scotty beam me up some jewels". Professor Nesson likened this to file sharing and said it was like "Scotty beam me up some free music". He explains that parents are expected to teach about intellectual property but it is a hard thing to explain and even harder to police.

Professor Nesson then turned to Dr. Liebowitz's sports analogy in comparing the weakening property rights to less professional music being produced. He stated he didn't completely agree with his characterization of professional always being superior to amateur and gave the example of March Madness often being more interesting and compelling that seeing a Celtics game. He states he's not completely sure we are better off if there is more professional music being produced, but explains that we are perhaps better off with more overall music.

He then turned to the testimony of Mr. Wilcox. Mr. Wilcox stated how the music industry struggled encasing their product in encryption and explained that Mr. Wilcox used the term "compatibility". He explained that the consumer didn't want encrypted music, but wanted something that was compatible with all of their devices and could be used. Professor Nesson argued in a sense that the market demanded the mp3 format, but that it wasn't available from the music industry until 2007. He argued it was not the case in 2004 that the recording industry had a comparable product to the free mp3. He said that that didn't necessarily mean that Joel would have paid for this product in 2004, but maybe he would have.

Professor Nesson explained that Mr. Wilcox's story about the industry moving from a CD environment to a digital environment and explained that it was in a way a story that paralleled Joel's, moving from a skateboarding kid to where he is now in the process of coming of age. He asked the jury who should be blamed for the difficulty that the internet presented them.

He then moved to the damages component. He asked the jury to consider the nature of the infringement. He explained many levels of infringement from the top end criminal counterfeiting syndicates to the middle ground people who did it to harm the recording industry but made no money, down to the people like Joel who made no money and had no intention of hurting the recording industry.

He explained that this was a civil case and the first time Joel had been to court. He likened it to other first time civil offenses such as underage drinking, and smoking marijuana.

He returned to the jury instructions on what they could consider in awarding damages. He went through all of the factors listed, but spent the most time on purpose and intent and the profit/saved expense of the defendant. He argued that the purpose and intent was to enjoy free music and had no maliciousness. He stated that there was no profit by Joel and only potentially the slightest saved expense. He argued that the harm caused specifically by Joel was low, because if Joel had gone offline there would have been thousands of other copies of these track available for others to download. He argued that Joel was not the original seeder of these files and his absense would not have deterred anyone from getting these files from peer to peer networks.

He referenced revenue numbers by Plaintiffs, but stated that the value of the copyright to the lay person, Joel, was what the songs could be purchased for $.99.

Professor Nesson offered the jury the proposition that Joel was addicted to free music and didn't want to leave it since he already has a functional method of paying for music. Professor Nesson then explained the PR campaign. He said that Joel recieved the message by PR in increments until it eventually sank in and he stopped his conduct. He explained that it was up to the jury to determine if that plays in to the damage.

He then explained the factor of deterrence the jury could use in deciding the award. He argued that there was no need to deter this defendant any more and that the Plaintiffs were looking for a deterrent effect to target a generation. He argued that they were not in this for the money since they had testified that they lose money on this campaign.

He said that this wa a federal case about a kid in his bedroom on a computer screen. He argued the the recording industry was trying to send a message to all of the Joels in the world. He used an economics analogy and said that if you had a situation where there was a lot of parking violations but only one police officer who could not enforce them all and economist would argue for a very large penalty on one, so that others will be deterred and frightened to violate the law. He argued that this is what the Plaintiffs are attempting in this case but that it would not be justice.

The asked the jury then to consider other factors in the award. He asked them to consider the arbitrariness in selection of Joel by MediaSentry. He asked the jury to consider the arbitrariness in the selection of the number of songs to pursue in this case. He asked the jury to consider the fruitlessness of this campaign that had gone on for several years and was now at a dead end.

He asked the jury to consider justice in the bottom line of their verdict form. He told the jury that if the number at the bottom of the form is appropriate then they are doing there job, and if it isn't then they didn't do their job.

Professor Nesson then explained the form and told the jury that if they thought it was just they could fill in zero for the amount of damages. This statement was objected to and the objection was sustained.

He used an analogy for a punishment a parent might set out if they caught their child smoking cigarettes. They tell their child if they are caught that they will be fined $10. He says that the parents later find and empty pack of cigarettes with their child, and a pack with only ten cigarettes left. He asked if the parent should charge $10 or say that there were 30 cigarettes smoked and charge $300.

He told the jury that it was for them to decide justice and reminded them that it was not Joel who created the open internet or peer to peer.

He told the jurors that Plaintiffs were going to ask them to send a message. He asked them to send a different message.

He then closed by telling the jurors that it was the last he was going to be able to speak to them and told a story. He said that a child went to an old wise man with a bird in his hand and asked the man if it was dead or alive. The man knew that if he said the bird was alive the child would crush it and if he said it was dead he would open his hands and have it fly in his face so he simply told the child that "the bird is in your hands". He then told the jury that this case was in their hands.


Mr. Reynolds began by thanking the jury for their service and commended Professor Nesson for being a very eloquent speaker especially with very few notes. Mr. Reynolds also wanted to tell a story about his first interaction with the law. He stated he was not as successful as Professor Nesson. He explained that he store a Charms Blow Pop from a 7-11 when he was a child. He was taught a lesson by that event that he was not supposed to take.

He argued that Defendant said this case was about a new digital world, but that none of that was true. He explained that the Defendant had lied on his written responses and he knew what he was doing, and that he had refused to take responsibility for years before finally admitting responsibility yesterday. He submitted to the jury that they had proven all four elements for copyright infringement and that the infringement was willful. He stated that the Plaintiffs had the burden of proof but he believed they had more than met that burden. He stated that there was evidence of his willfulness in his repeated warnings, starting from when Napster was shut down, the information he received from his college, and his father telling him to stop the activity.

He then turned to the issue of sharing. He said that this was not sharing, this was copying. He said that he was warned in a 2005 letter of this activity and its harm. Mr. Reynolds argued that he did not stop or consider, but rather increased his activities after this. He offered the evidence that the Defendant had moved from one file sharing application to another because he wanted to get the most free music with the least amount of effort.

He then argued that in some instances the Defendant acted the same was as a pirate ripping group with the example of the Deftones David Letterman performance he recorded and placed on to KaZaA. He also stated that Mr. Tenenbaum "Seeded Network Neighboorhood" at his college with music. He also offered the evidence of Defendant having Windows reinstalled on his computer by Best Buy after he knew Plaintiffs were trying to inspect his computer as evidence of Defendant's continuing disregard.

He turned to Mr. Nesson's argument that he was a first time offender, but argued that he was not a first time offender but in fact had been doing this for years and continued for years afterwords. He then said that Defendant had for years failed to tell the truth in this case. He lied on written responses, he lied when he told Plaintiffs that the computer from his bedroom in Providence was gone.

Mr. Reynolds argued that the Defendant had blamed others and wasted time and effort with lies and misdirection. He told the jury that the Defendant still had copies of the songs, and that this entire time he has never said that what he did was wrong.

He then argued about the assertion that the Defendant was just a kid. He said that Defendant had turned 19 in 2002 and had been an adult the entire time this case was taking place. He argued that his infringing activities continued until Defendant was at least 24 years old. He furthermore argued that his conduct became worse year after year as he became older. He pointed to evidence from Dr. Jacobson that there were days when hundreds of files were added to his shared folder.

Mr. Reynolds then claimed that Defendants assertion that everyone was doing it was false. He pointed to the deposition of his friends, and the student government movement at Goucher college that not everyone was engaging in this type of activity. He referenced Mr. Wilcox's testimony that there were alternatives available to Joel, but he still infringed. He said that Joel wanting music in a more convenient form is no evidence of addition and even if it was that it was no excuse for his actions.

Mr. Reynolds made the argument that the law had no distinction between products of atoms and bits for the purpose of copyright infringement. He turned to the twenty-five files that MediaSentry didn't download. He pitied Dr. Jacobson's numerous awards and activities and again stated his opinion that all twenty-five files were downloaded and distributed by the Defendant's own admission.

He then told the jury that Joel made them all come to this trial, and made many people spend months of effort just so that he could get here and say yes, he did it. He likened this to a wild goose chase.

He asked the jury to apply appropriate liability and award damages to what Joel did. He argued that he distributed music for free and that the harm was significant. He said that this kind of activity made it difficult for his clients to develop new online markets, and cited Dr. Liebowitz's testimony that it weakened their property rights. He cited the executive testimony that the effects on staff were large. He stated that the need for deterrence was great and told the jury that he agreed with Professor Nesson that the amount of the award was in their hands. He asked the jury to hold the Defendant responsible for his actions.

Defendant rests in Sony v. Tenenbaum


The Defendant presented his case in Sony v. Tenenbaum consisting of only a single witness. Dr. Wayne Marshall was called and demonstrated to the jury the current practice of being able to download an mp3 file without any encryption or DRM restrictions from the mp3 store. Defendant also intended to show a YouTube video of the same track as was downloaded and wished to show the process of saving this video with software called KeepVid, but this demonstration was objected to during voir dire and the only demonstration presented to the jury was that of the mp3 download.

Court reverses itself, will direct a verdict on liability, in SONY v Tenenbaum

The Court has reversed itself and has stated now that it will direct liability in favor of plaintiffs in SONY BMG Music Entertainment v. Tenenbaum. The order draws no distinction between infringement of the reproduction right and infringement of the distribution right.

Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy)
[Ed. note. The judge's ruling is erroneous. The question : "are you admitting liability" is a legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer. For the Court to base its decision on that is wrong. -R.B.]

Commentary & discussion:


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

Day four in Sony v. Tenenbaum


Testimony in day four of Sony v. Tenenbaum began with the continuing cross-examination of Dr. Stanley Liebowitz

Professor Nesson continued his questioning from a point that he offered he and Dr. Liebowitz both agreed, that the recording companies began having declining revenues at a point after which Napster made file sharing ubiquitous and due to the weakening of the property rights of copyright holders. Professor Nesson asked that given the new situation that had emerged if he believed that it was true that the same companies may not emerge as leaders when a new business plan plays out as the companies that were previously the leaders. He asked the Doctor about an opinion he offered in his 2001 book that DRM would be a part of the future of the music business. Dr. Liebowitz responded that he was hopeful that DRM would be successful in restricting the ability to copy music so that it would strengthen the property rights of the copyright holders, but stated that DRM turned out to provide only limited protection because it was relatively easy to defeat, such as by burning CDs. He then asked about when the industry first offered a product that was not restricted, and was comparable to the open MP3 file, he testified that he thought this happened in the 2007 time frame.

Professor Nesson asked Dr. Liebowitz to explain to the jury an example in his report which used a jewelry store. He explained his analogy of one where a jewelry store owner was continuously robbed, thus forcing the owner in to a different business model, such as selling for another store. He generalized that this was a similar weakening of property right which was detrimental to society because it would force someone in to an unanticipated occupation, which despite how successful they may be at it would be a loss to society because it prevented someone from being in the occupation they desired. Professor read in to this analogy comparing it to a store with no locks on the doors or other methods by which it would be robbed or an alternative product to jewels. Under this testimony Dr. Liebowitz maintained his position, but did say that under a system where people have strong enough will to break the laws relating to strong property rights that there may not be an enforceable system which gives people the strong property rights they once enjoyed.

He was asked if it was his position that if there was a weakening of property rights that it led to a decline in production in general. He agreed, and stated that this weakening of property rights likely led to a drop of production in sound recordings in general. He was asked if other experts in his field believed that the dip in record sales was not due to file sharing, and offered Oberholzer-Gee's paper as an example of a economist who disagreed with his position. He questioned Dr. Liebowitz on an assertion in an Oberholzer-Gee paper that stated the number of annual music albums released doubled since 2000. Dr. Liebowitz said that he believed these numbers were not necessarily reliable because it only included the number of releases registered with Nielsen, and not necessarily the number of professional quality albums released, which could not necessarily be compared since in previous times it would not be possible to come by numbers for the number of amateur quality music released and thus the current numbers from Nielsen would be comparing apples to oranges with previous numbers they released.

He then went in to a sports analogy to explain his proposition about professional quality versus amateur quality albums released. He explained that if the market for professional quality sports went away because due to some market change professional sports franchises could no longer sell tickets or make money from broadcasting that it would not eliminate sports being played, since there is plenty of amateur sports being played where the participants do not make money, but since money is being paid to professional sports that the market overall prefers these kind of sports. He explained that if the property rights of the professional franchises were eliminated it would be a harm to society because the professional tier of sports would go away and would likely impact the total production of sports for the marketplace.

He was then asked about the network effect, whereby the more people that have access to technology the more overall value the whole technology had. He explained this with an analogy to the telephone, but concluded that a network effect due to file sharing was not likely.

Upon redirect Dr. Liebowitz was asked if he agreed with the opinions provided in the Oberholzer-Gee paper. He responded that he did not. He was asked if there was any reason to believe that the specific plaintiffs in this case would be companies that would not survive in the new marketplace that was emerging, to which he also replied that he thought there was no reason these companies should fail.

Joel Tenenbaum

The main witness of day four was the Defendant, Joel Tenenbaum. Joel was asked basic questions about where he currently lived, as well as where he had previously lived, and what computers he had both at his Providence home and in college. He said nothing surprising about his computer at home or at college that hadn't been revealed in previous testimony. He also testified that he had used the sublimeguy14 username, admitted that he had used KaZaA, and that the KaZaA shared folder in the screenshots from MediaSentry were his. He also testified that it was not uncommon for him to see other people uploading files from him on the KaZaA traffic tab. Mr. Reynolds then asked the Defendant about the case that was against him. He testified that he first found out about the case from his mother. He was asked about his responses to interrogatories which asked who else may have used his computer or KaZaA and requests for admissions about file sharing use. His answers to both stating no knowledge were shown to the jury to each of these questionnaires.

The questioning then turned to his deposition testimony where he stated that there were many people who could have used his KaZaA account, friends, other people who had stayed at his house, etc. He also testified that he had never actually seen any of these people use KaZaA. He was then asked about his musical tastes and asked if he liked several artists that appeared in the KaZaA shared folder. He testified that he had burned CDs of the music in his shared, and testified that he had ripped CDs to his computer. He testified that he had never filled in the "comments" meta data on any of the files ripped to his PC. He testified that he may have changed the meta data on some files to be consistent with others for it to be easier to find in music programs, but did not do so for much of the music that he had.

Joel was asked about a video he had recorded from a Deftones performance on the David Letterman show. He testified that he had recorded this video and put it himself in to his KaZaA shared folder and made it known on a Deftones forum that he had done so for others to download it from him.

Joel was then asked about his computer and music usage habits at Goucher college, where he stated he and other students had used the Network Neighborhood feature of Windows to share music with one another in college. He was shown numerous items from Goucher college warning about copyright infringement and peer to peer file sharing, all of which he admitted to having received at some point as a Goucher student. He was asked about other file sharing software such as Napster, LimeWire, and iMesh and admitted that he had used them all. He testified when asked that he did all of this to recieve the most amount of music with the least effort.

Joel was asked about his letter to Plaintiffs after initially learning that he may be sued for copyright infringement. The letter included a line stating he was not near his computer in Providence at the time of writing, but would return later and delete any copyrighted material if it existed. He was also asked about the inspection of his computer and the re installation of his computer, which he stated he took to Best Buy to have done while inspection was pending, but asked Best Buy to preserve all of the music because of the Plaintiffs inspection which was potentially pending. He stated that he took this to be done because the computer wouldn't boot up anymore. He was asked if he had any reason to disbelieve anything in Dr. Jacbson's report stating that he didn't because Dr. Jacobson was "a competent professional". He testified that he had listened to, talked about, made mixes of, and made available for distribution all of the music in his shared folder.

On cross-examination Professor Nesson asked Joel about his personal and family history, places he had lived, when he became interested in music, to which he explained with great narrative detail. He testified about his usage of music, including borrowing CDs from friends, making mix tapes from the radio, and purchasing music CDs from record stores. He was asked what he found attractive about Napster to which he said he'd previously used Yahoo! search to attempt to find mp3 files, but it was much easier when Napster came about. He testified that he was not the person who originally installed Napster on his computer in Providence. He explained that Napster was a giant library of songs in front of you and "the Google of music". He stated he did not have a sense that it was illegal at the time he was using it. He also stated that his friends also used Napster, and he was never insterest in hurting the artists and record companies.

Professor Nesson asked about Joel's high school life and how he used music throughout that time period, which he described driving around with his friends listening to music in his car, and was asked about his car which he testified that he and his father had installed a good deal of upgraded stereo equipment in.

Joel testified that also used KaZaA and found it to be similar to Napster in function. He was asked about his letter to Plaintiff and why he didn't remove his music files as the letter said he would. He stated that he intended to, but could not make himself do it after all of the time he had put in to assembling the music collection. He then described what happened at college afterwards, with his college moving more and more year after year at college to make file sharing applications not work, to which he stated that around his junior year none of the applications he had used worked properly anymore. He stated he continued buying CDs during this time period, due to quality issues.

Professor Nesson then turned to issues of the present lawsuit and why he lied on his written interrogatories. Joel said that his answers seemed like the best response to give without a lawyer. He also asked about some of his deposition testimony which he stated that he was less than fully forthcoming in it. He eventually was asked if he was taking responsibility, to which he said, "I did it".

He stated that he stopped in 2007 or 2008 because of problems using filesharing with malware on his machine, encountering spoof file, and because he began using iTunes. He stated that this lawsuit was one of the reasons he stopped using file sharing.

He stated that during the time Plaintiffs accused him of infringement, August of 2004, he was not aware of iTunes. He stated he may have heard of some other music services but that he wasn't in a position to switch his music acquisition to any other method. He was asked if he ever used file sharing for the purpose of selling or any other commercial activity, which he said he did not, that his use was entirely personal.

The redirect was very short, asking about his bringing his computer to Best Buy and if his intention was to destroy evidence by doing so, he stated it wasn't he just did so because it wouldn't run. He was asked about his testimony that he shared music with friends and was asked if his friends with everyone on KaZaA and Napster, which he said he was not. He was asked if he was now admitting liability, to which he said yes.

Ron Wilcox

Mr. Wilcox is with Warner music group and formerly of Sony. He testified as to the sale of music beginning in the early 1980s through the present time. He explained the advent of the CD and that it was not built with any encryption because the threat of copying was not seen as a major threat at that time. He testified as to music industry efforts in the 1990s to explore digital distribution methods, to which he described generally in terms of the amount of effort expended on it, but no specifics. He testified that all the technologies they looked at during this time included some sort of copy protection.

He testified that efforts to add encryption to CDs were never fully explored because it would have left a lot of existing equipment obsolete and they did not believe this would be something that the marketplace would accept. He testified about early forms of DRM such as FairPlay on iTunes.

His cross examination was short, being asked about Warner's reaction to Napster which he said concerned the company because it was an illegitimate free product. He was asked if Warner or Sony ever tried to partner with peer to peer services which he said they had but that the partnerships never went very far because of animosity on the peer to peer side and stated they never seriously wanted to work with record companies in the way that they wante.d

Silda Palerm

Ms. Palerm's testimony was to authenticate the Warner tracks at issue in the case. The only other issue she testified to was that Warner had had an over 50% reduction in force since the year 2000. On cross examination Mr. Feinberg asked if the reduction in force was at all attributable to the economy. Ms. Palerm stated her opinion that since the bulk of reduction in force was prior to the economy having trouble that she believed it was due to file sharing.

After Ms. Palerm Plaintiffs ended their case.

Plaintiffs after the conclusion of their case moved for a directed verdict on the issue of copyright ownership, liability, and willfulness. Defendant conceded ownership, but not any of the other factors. Judge Gertner indicated she was inclined to direct on the issue of liability based on testimony but still planned to go to the jury with willfulness and the award. The Defendant indicated that they will likely wrap up their case by mid-morning on Friday, after which there will be closing arguments. Plaintiffs indicated they only needed 20-30 minutes for their closing.

Court's docket entry for day 4:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 4 (Thurs)held on 7/30/2009....p-8 Liebowitz testimony resumes; P-9 Joel Tenebaum; P-10 Ron Wilcox; P-11 Silda Palerm; Jury excused; Plt moves orally for Rule 50 mtn-under advisement..(see endorsement dated 7/31/09 for ruling), ct adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Gaudet, Jenn for M.Molloy)

Thursday, July 30, 2009

Defendant submits proposed jury instruction on damages in SONY v Tenenbaum

Defendant has submitted a proposed jury instruction on damages in SONY BMG Music Entertainment v. Tenenbaum.

Defendant's proposed jury instruction on damages

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

The Court leaves all issues, other than copyright ownership, to the jury, in SONY v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Court ruled that all issues other than copyright ownership will be left to the jury.

Judge Nancy Gertner: Electronic ORDER entered with respect to Rule 50 motion: The Court will make required findings concerning copyright ownership, but leave all remaining issues -- infringement (reproduction and distribution), damages and willfulness -- for the jury, out of an abundance of caution. The Court does so in part because the statutory damages inquiry obliges the jury to consider some of the same issues as the infringement inquiry, i.e. the nature of the infringement. (Gertner, Nancy)

Commentary & discussion:

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

RIAA submits response to proposed jury instruction no. 110 on wilfulness in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the plaintiffs have filed a response to proposed jury instruction no. 110.

Plaintiffs' response to jury instruction no. 110

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Wednesday, July 29, 2009

Day three witnesses in Sony v. Tenenbaum


Antonio Franko

Wednesday's first witness was Antonio Franko, a high school friend of Joels. He hasn't seen Joel for several years and was asked some basic questions, about his use of a computer in Joel's bedroom, and about Joel's music collection. In similar testimony to Mr. Chappel he stated that he'd used the computer but never to use KaZaA or download music, despite deposition testimony from Joel that he may have. He testified also that Joel had a good sized music collection, including some burned CDs.

Dr. Doug Jacobson

Most of the morning and a portion of the afternoon was testimony from Dr. Doug Jacobson, the Plaintiff's expert witness. He began by going over his qualifications and his curriculum vitae and was admitted as an expert with no objection from Plaintiffs. He explained that he was asked to produce a report for Plaintiffs about the MediaSentry data he reviewed in this case, and eventually to issue a supplemental report after examining a computer hard drive from Joel's Gateway computer.

He then began explaining how peer to peer networks work, and how KaZaA works specifically. After describing technical details about peers, supernodes, and IP addressing he moved on to the user experience of the KaZaA application. He explained that users search in KaZaA for files, then they can choose files from the results returned to begin the files downloading on to their computer. He explained that the users in the peer to peer network typically don't know each other, and only identify one another by their IP address. He was asked to explain some features of KaZaA 2.0, which he explained had an option to scan for files that you may wish to share with the KaZaA application, and that this was an option that would only occur after the user chose to run it. He was asked if KaZaA could be used to listen to music from other computers on the network. He explained that this could only happen if the music was first downloaded from the other computer.

Dr. Jacobson then testified about the report he prepared on the MediaSentry evidence. He testified that he had reviewed the MediaSentry information and formed the opinion that Joel Tenenbaum had used that computer, and that he had used it to copy and distribute copyrighted files. His opinion was based on the evidence that MediaSentry was able to start the download of 1000+ files and collect MetaData and successfully continue the download for a subset of these files. He examined the screenshots of the shared folder and stated that all of the files listed were available for distribution. He testified that the initiation process on all files serves the purpose of proving that the file does indeed exists, and gathers the meta data about the file for further evidence.

He then began to explain in more detail than Mr. Connelly some of the information contained on MediaSentry's data log. He explained the makeup of the request packets and response packets, including the source and destination IP address on the packets, as well as some of the header information such as the request of the file by its file hash, and the header fields showing KaZaA username and KaZaA IP address. He went into the most detail on a file where a request was sent several times without a response to sublimeguy14's computer before a response was recieved from a different user (nick_c). He explained the packets in this case showed that the file started downloading from someone else, but eventually finished downloading with a transfer from sublimeguy14's computer. He stated from all of his analysis that he had no doubts about the MediaSentry information and believed that sublimeguy14 was distributing the entire file with that hash code. He also stated his belief that all of the files were available for distribution based on MediaSentry being able to obtain the meta data for all of them.

He also testified as to a number of tracks about his belief that the files came from the internet and were not ripped, based on the meta data that MediaSentry was able to obtain. The format and completion of the meta data was not consistent among many of the files, making him form the opinion that they were not ripped by the same computer. He explained that if they were ripped the meta data would likely have been consistent from the same software performing the ripping on multiple tracks.

Dr. Jacobson was asked whether or not he believed a wireless router was involved in this case. He explained that in the case where a router was involved the X-KaZaA-IP: header field would differ from the source IP address of the data packet, with the former being a private IP address. He explained that this address was identical in all of the data packets from sublimeguy14's computer, which indicated there was no wireless router. He also pointed to the partial file received from nick_c which showed a 192.168.x.x IP address in the X-KaZaA-IP: header, which he explained meant that nick_c was using a router to connect his computer to the internet.

Mr. Reynolds asked Mr. Jacobson if he had any doubts or concerns about the accuracy or methodology of MediaSentry, to which he replied that he had none. He also testified that he had no concerns about hte data provided by Cox Communications.

He was asked about the concept of pollution, which he explained was a situation where a file name does not match what is in the content of the file. He testified that he had no basis to believe that pollution occurred in this case. His opinion is based upon the data lengths of the files matching those of legitimate versions, and having proper meta data. His opinion he stated was also supported by the finding that those files that were completely downloaded did match what their file names claimed that they were.

He was asked about the concept of IP spoofing, which he testified was difficult to perform on the public internet and that he had no reason to believe that it took place in this case.

After a brief break Dr. Jacobson then began testifying about his forensic examination of a hard drive from a Gateway computer that Joel owned. He testified that this computer was different than the computer that Joel had in 2004 in his bedroom, he stated that he performed his investigation about a month ago.

He explained his process of examining the hard drive, by recieving a forensics copy of the drive and using the EnCase software to examine it. He testified to several points he discovered during his examination:
* Windows had been reinstalled on the computer on 3/31/2009.
* There were two registry files which could not be opened, which he indicated was evidence that they were attempted to be deleted.
* The file sharing program LimeWire was on the machine, and he believed it to be operable.
* He found evidence of over 2700 music files in the C:\My Music folder which LimeWire was sharing, but that this folder itself had it some point been deleted.
* He was able to identify several songs that were once in the C:\My Music folder that were at issue in this case.
* He found several hundred exact matches to files in the C:\My Music folder that were being distributed by sublimeguy14@KaZaA
* He also found a My Music folder under Joel's My Documents folder, which contained a similar folder structure and many of the files that were removed from the C:\My Music folder.
* He had formed the opinion based on the inconsistent meta data in the files he found during the forensic examination that they were downloaded and distributed on the internet.

Upon cross examination Professor Nesson asked Dr. Jacobson was he was being paid for his work. He stated that his rate in these cases was $200 per hour, and that he had probably worked 40-50 hours on this case. He testified that he has probably prepared about 300 reports for the recording industry in these types of cases, but most of them did not involve a forensic examination. He estimated that his total earnings from his work for the recording industry to be in the range of $100,000 - $120,000.

He was asked if he had any relationship to MediaSentry. He stated that he did not have a relationship to MediaSentry, but he did discuss their data handling protocols with them. He admitted that he had never examined or tested their software. He was asked about the MediaSentry statement that their software had a zero-error rate. He stated that in the MediaSentry data that he had examined that he had never found any errors, but admitted that a zero-error rate that is something that is hard for software to achieve.

Dr. Jacobson was then asked why MediaSentry only downloaded 7 of the files they found in the shared folder. He stated that it would have been infeasible to download them all, because it would have taken a long period of time. He was asked that for the remainder of the files it would be impossible to know if they were the sound files they stated they were or not, because there was no underlying file. Dr. Jacobson agreed that an audio comparison could not be made, but that it was still his opinion that all of the remaining files were present for distribution.

Professor Nesson asked Dr. Jacobson that if a spoofed file was present in the directory if it would look the same as the other files from the meta data, to which he admitted that a spoofed copy could contain the correct meta data as well.

Professor Nesson then returned to asking Dr. Jacobson about a company he mentioned that he formed during his description of his credentials. He asked about the product, such as to whom it would be sold and what its purpose it was. Dr. Jacobson stated the market for the product was any customer that wanted to control peer to peer traffic on their network.

Dr. Jacobson was then asked about the InfraGuard group of which he is a member. He was asked in basic detail about what it was, and asked if copyright infringement had ever been discussed at an InfraGuard meeting. He stated could never recall his chapter discussing copyright infringement but that the chapters were each free to operate in their own way.

Testimony then broke for lunch, after which Dr. Jacobson resumed testifying. He was asked to describe the user friendly aspects of KaZaA, and he described the process of searching for a file and double clicking it to download. He asked what other active action needed to be taken to distribute the file, which he said there was none, it just happened after the download completed, the only active action was double clicking the file for the initial download.

Professor Nesson then proceeded along a line of questioning about the quality of music files found in the shared folder, and asked Dr. Jacobson to compare them to the quality of music that would be found on CDs. He stated that the MP3 files would be of lower quality, but that most people could not tell by simply listening. He conceded on further questioning that some people could likely discern the difference in quality between the two. He then began to ask if someone might download these lower quality files on the internet before purchasing the higher quality CDs in the stores, but his line of questioning was stopped based on sustained objections from Plaintiffs that this questioning was out of the scope of the direct examination.

Professor Nesson then asked some questions about pirate rip groups and asked if there was any malicious quality to the way these groups put out music. This question as well as others in a similar line of questioning were also stopped on sustained objections.

The examination then turned to the issue of the re-installation of the operating system that Dr. Jacobson testified about. Professor Nesson asked if htere was any evidence that the re-installation of the operating system was for any malicious purpose, or if there was any evidence that the number of music files was reduced after the operating system was re-installed. Dr. Jacobson answered in the negative to both of these questions. He was then asked about the two registry files that the EnCase software was unable to open. Dr. Jacobson previously testified that missing the data from these registry files made it impossible for him to determine some things about the configuration of the computer. Professor Nesson asked him more specifically about which registry files were unable to be opened. One was the NTUSER.dat file for the all users profile. Professor Nesson asked about this file and its relation to a NTUSER.dat file in the "joel" profile that was able to be opened, and asked if that meant he should be able to find information about Joel's user account and settings. Dr. Jacobson stated that what settings were stored in what location would depend on the way in which the software was installed, so he cannot tell for sure what exactly was in the registry file he was unable to open.

Professor Nesson's final question concerned Dr. Jacobson's report that 750 music files were added to the machine in October of 2007. He asked whether or not these files could have come from being added to the iTunes library if Joel had begun using iTunes at that time. Dr. Jacobson stated that he did not know if iTunes made a copy of files that were added to the library, or what method it used to make a copy if it did, so he could not say for certain.

Upon redirect Dr. Jacobson was asked about the report he prepared in this case. He stated that it was twelve pages long, with several hundred pages of attachments, and that it was quite lengthy for this type of report.

He was asked directly about his testing of MediaSentry software. He stated that MediaSentry used KaZaA, and that he had tested and used KaZaA and he was also familiar with the theory of the type of capture software MediaSentry uses.

He was again asked about the 25 files at issue in the case that were not downloaded. He again stated that all of the files are consistent, and what they purported themselves to be.

On recross Dr. Jacobson was asked if KaZaA contained Malware. He stated that it would be more accurate to say that it contained Adware. He was asked if the MediaSentry computers had adware on them. He stated that he has not investigated their computers beyond what MediaSentry has told him, which is that they keep their computers clean.

JoAn Cho

Ms. Cho of UMG Recordings testified similarly to Mr. Leak of Sony in regards to the UMG songs that were at issue in the case. I won't go into great detail about her direct examination, because it was essentially identical to that of Mr. Leak. Nothing was said that was a great deal different than what Mr. Leak said. She echoed Mr. Leak's testimony that only 13 of the numberous sound files they owned that were found in the shared folder were being pursued because they wanted to pursue a reasonable number.

Defendant's co-counsel Matt Feinberg cross-examined Ms. Cho. He asked about the Doe suit that was filed in Georgia to serve a subpoena on Cox Communications and also asked if Cox had ever challenged the methods used to obtain subscriber information. She testified that she was not familar with whether or not Cox had challeged the methods. He asked about the number of lawsuits that the recording companies had filed, to which she said she couldn't give an exact number filed. She was also asked about her other worked performed for UMG, such as being involved in other cases. Mr. Feinberg attempted to ask her what made the number of songs they chose to sue on reasonable, to which she stated she was not involved in making the decision on the number to pursue, but that it was done by others at her company. He asked if part of the reason for the lawsuits was to teach a lesson, to which she stated that it in part was and was in part to receive compensation. She was asked about legitimate online sales at the time, to which she specified a few services, as well as testified about the pricing of individual tracks available on iTunes both previously and currently.

On redirect she was asked about the purpose of the Doe suits, which she stated was a method by which they use to obtain subscriber information. She was also asked about chain of title and described the process of proving chain of title through various corporate documents about recording contracts, copyright registrations, and mergers and acquisitions.

Stan Liebowitz

Dr. Liebowitz Economist from the University of Texas. He described his career history as well as books and articles he had written before he was admitted as an expert in Economics with no objection. The heart of Dr. Liebowitz's testimony focused on the fact that record company sales had increased from 1973 through 1999 before dropping, after which they have dropped consistently. He testified as to his opinion that file sharing was the reason for this drop in sales, supported by his research as well as his analysis of many other reasons why sales might drop of which his economic studies had revealed none. He also testified that he could not show the economic effect of Joel in specific, but stated that file sharing as a whole had resulted in great harm to the industry.

Professor Nesson began his cross examination of Dr. Liebowitz asking about his report that the fundamental problem was the erosion of property rights brought about by file sharing. Dr. Liebowitz agreed. Professor Nesson read a portion of Dr. Liebowitz's book from 2001 where he stated that it could not yet be seen what effect file sharing would have on music sales. Dr. Liebowitz stated that he agreed with every word that was read from his book, but stated that it was written in 2001, and his further studies since that time showed that time more data has become available which supplemented his opinion that file sharing had great harm.

The hour hit five o'clock and Plaintiffs wished to finish with this witness, but Professor Nesson stated that he had quite a bit to go and Judge Gertner released the jury for the day. The cross examination of Dr. Liebowitz will resume tomorrow morning.

Plaintiffs indicated that they have three witnesses remaining, including Joel, plus two depositions to read in. They anticipate they will finish their case tomorrow. Professor Nesson indicate that he would be able to present his entire case on Friday. Judge Gertner indicated that closing arguments will be immediately after testimony is concluded.

Commentary & discussion:

3rd day of trial concluded in SONY v Tenenbaum

The third day of trial in SONY BMG Music Entertainment v. Tenenbaum was concluded:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 3 held on 7/29/2009...p-5 Antonio Franko; p-6 Doug Jacobson;p-7JoAn Cho; p-8 Stanley Liebwitz, court adj. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Molloy, Maryellen)

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

Judge asks for 'further argument' on definition of wilfulness in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Court has asked for "further argument" on the definition of wilfulness.

Judge Nancy Gertner: Electronic ORDER entered, requiring further argument on the question of how "willful infringement" is defined. (The Court is issuing this order so that the parties will be prepared to address the issue; no written briefing is required.) The plaintifss seek an instruction that "willful infringement is that committed with knowledge of or "reckless disregard" for the plaintiffs copyrights. (Instruction #29). Defendant counters that instruction by pointing to section 504(c)'s three levels of statutory damages: the bottom level, the "innocent infringer," is "not aware;" the middle level is arguably the opposite, one who is "aware" and "knowing." The highest level, willfulness, defendant suggests, is reserved for someone who has infringed with more than "knowledge" of the infringement. While plaintiffs' instruction tracks the language of the case law (including a decision of this Court), defendant' argument comports with the statutory structure. (Gertner, Nancy

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

Tuesday, July 28, 2009

I'm not commenting on the SONY v. Tenenbaum trial any more

As far as I'm concerned the key triable issues of fact in SONY BMG Music Entertainment v. Tenenbaum are mentioned in my blog post, My wish list for the SONY v Tenenbaum trial".

The Judge's allowing jury selection to go awry, and allowing all sorts of irrelevant material to be adduced in opening statements and in direct testimony, saddens me.

I'm not going to comment any further on this case; I will just hope that the correct points are eventually touched upon, and that the case will be decided upon the law and the facts, which at this point seems highly unlikely.


Commentary & discussion:

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

Witnesses in day two of Sony v. Tenenbaum


Wade Leak

Wade Leak of Sony BMG Music Entertainment began by describing what the record companies do. They find new music, work with artists to match these artists with songwriters and producers and described the basic process of working with an artist to produce an album. He stated that the record companies primary source of revenue is sale of record albums and online sales of the tracks that they produce.

He states that he is familiar with the songs Sony and Arista are suing over in the case. He identifies three songs that MediaSentry downloaded and four additional songs which the copyrights were owned by his companies in this case. He stated that Sony registered all the copyrights of these recordings and described the content of the certified copy of the copyright registration from the copyright office. He stated that Sony has the exclusive right to these songs and that they were sold in albums and also sold digitally.

He then described that MediaSentry was hired to gather evidence of online infringement and that MediaSentry found a user, sublimeguy14@KaZaA distributing these songs. MediaSentry downloaded all of the three songs he initially identified, he listened to these tracks and determined that they were identical to the songs that are sold by his companies. He described the process of using a John Doe suit to obtain the subscriber information for the IP address MediaSentry identified from Cox Communications and sent a letter to J. Tenenbaum to put him on notice of a copyright infringement claim. He then described the screenshots of the sublimeguy14@KaZaA’s shared folder and identified many works that are owned by Sony that they are not pursuing claims on in this case. When asked why they were not pursuing claims on all these files he stated that they were pursuing claims on a “reasonable” number of songs. He stated that he wanted fans to buy his companies music, and that copyright is instrumental in making this happen.

He was asked why they were suing individuals in this manner. He described their initial attempts to go after file sharing services, as well as PR efforts that the recording industry attempted. Eventually they decided to go after individuals engaging in file sharing because they had no choice. He stated that he wanted people to love music, but he also wanted them to pay for it. He likened the activity to shoplifting, but in the digital universe. He stated that they do not make money from these cases, because their expenses exceed any settlements they get through them. He said that the reduced revenue due to lost sales has led to numerous job losses at Sony. The stated that many people feel file sharing is a victimless offense, but the victims are those at Sony who have lost their jobs in recent years. He stated that Sony is seeking statutory damages in this case and does not have a number in mind of damages they would like to see awarded.

On cross examination Professor Nesson asked Mr. Leak about how they hired MediaSentry and how thew coordinated with the RIAA, and again asked about the issue of money in these cases. Mr. Leak repeated that their expenses exceed any settlements they receive and that the goal in the campaign is education. He stated that most settle these claims before there is even a suit. He then asked about why Sony did not sue on all the files they saw in the shared folder, and he again repeated the intent to pursue a reasonable number. He did state that each was infringement and was willful, and they could have sued on many more songs.

Professor Nesson then focused on the issue of revenue. He focused on the numbers from several albums that showed that the revenue figures show a much greater amount of gross revenue from album sales than from the sales of digital tracks as a general trend in all of the revenue information for Sony tracks that he is asked to look at. He was asked to describe the digital services that were available in 2004.

He was also asked to describe the difference between the songs listed on the first exhibit of five and the other twenty-five identified, after which he brought up the issue of spoofed songs being available on file sharing networks. He asked if the songs that were not fully downloaded could be so-called “spoof” songs put out on file-sharing services to discourage people from using them. Mr. Leak stated that their spoofing efforts were only focused on front-line releases, and that they would not have been directed at these tracks because they were all catalog tracks. Mr. Leak stated that each of the songs in the shared folder represents a displaced sale and that the shared folder was evidence that these files were available for potentially millions of people free. He then again described in a way he attempted to under direct examination that was objected to, the difficulty of his business competing with a marketplace where music is available as described for free and likened it to being in the business of selling televisions where a truck pulls up outside your store and begins giving away televisions for free.

Mr. Nesson then attempted to proceed down a line of questioning regarding Sony’s ownership of Michael Jackson copyrights, which is quickly shut down by Plaintiffs sustained objections to the questions.

He then asked about the labels no longer initialing new cases. Mr. Leak stated that he was not involved in the decision regarding not pursuing new cases, but stated that they were still continuing with cases that had already begun. He also stated that they reserve the right to start new cases at any time.

Professor Nesson’s questions then wrapped up asking about what damage he thought was appropriate, and the answer was just that he wanted an award that was relative to his culpability and that his activity showed a blatant disregard for copyrights.

On redirect Mr. Oppenheim returned to the issue of revenue. Mr. Leak described the life cycle of a track and described different events that could cause a boost in sales at various times, such as the track being used in a movie or television show or a greatest hits album being released that would explain some of the variations in revenue numbers that were shown earlier.

He then described the lower amounts shown for digital sales were in part due to piracy, in part to it being new technology, and in part due to the figures only being for the specific tracks being sold, and not being full albums.

Chris Connelly

Mr. Connelly identified himself as an employee of MediaSenty/MediaDefender. He described his work as to protect the copyrights of his clients, specifically in cases such as these, to search peer to peer networks as any other user would do for their clients copyrighted works. He described the process of installing KaZaA from and the initial configuration process where the user self-selects a username and sets up a shared folder. He described the process of searching for files, selecting them, and downloading them. He described their process as something any other user would do, with the exception that they collect evidence of what is done, such as the packets that are transferred between MediaSentry and KaZaA users and the collection of screenshots produced by their process. He also testified that their process had a 'zero-error rate', meaning they had no examples of cases where the data they collected turned out to be erroneous.

He then described the evidence that they found, such as the screenshots of the sublimeguy14@KaZaA shared folder. He described the user log that they created which showed the meta-data they were able to transfer from over 800 files in this shared folder. He also described the data log showing packets between a Cox Communications IP address and MediaSentry. He was brought many pages of these logs showing mp3 files, kpl files, and MetaData collected about them. He testified that most of these files most likely did not come from ripped CDs due to disparities in format of meta-data, varying bitrates, et. cetera. which indicated that they most likely came from different originating sources throughout the internet. One part of the data log showed a portion where the sublimeguy14@KaZaA computer did not respond to several requests, which he described as 'most likely because the computer was busy' and the requested file then starting to download from a different PC. He described this process as part of the way KaZaA worked. He did testify that he had no evidence of other transfers between sublimeguy14@KaZaA and any other party, because peer-to-peer software does not show these activities taking place.

On cross-examination he again admitted he had no evidence of any other transfers and Professor Nesson focused on some tracks that had meta-data indicating they were ripped by someone named 'havok', he asked if he had ever seen any songs indicating they came from sublimeguy14 in any other case, to which he indicated he had not, but that since none of the metadata from this shared folder had that name in them that even if he had seen files that came from this shared folder in any other case they would not contain that name.

The questioning then turned to the issue of impact. He went back to the multi-source downloading testimony and asked that if someone had attempted to download the songs and sublimeguy14's computer refused to provide them that this would not have likely been an impediment to anyone else recieving the files. Mr. Connelly stated that other users probably could have recieved the files from other sources if sublimeguy14's computer did not provide them. Professor Nesson then stated that the fact that if Joel shared that it didn't change the picture much, given that so many users are online with KaZaA at any given time.

Professor Nesson then went to the issue of distribution. He described distribution as a word that has an active component as in 'a distributor'. He asked what actively Joel would have had to do to distribute the files after they were downloaded to a shared folder. Mr. Connelly stated that nothing needed to be done, when asked if it was someone else that had to actively request the files in the shared folder after Joel 'left them there' Mr. Connelly agreed.

Mark Matteo

Mr. Matteo works for Cox Communications and stated he had no relation to Plaintiffs in the case. He stated that his group at Cox was involved in the subpoena served on this case requesting subscriber information for specific IP addresses at specific dates and times. He described Cox's process for checking multiple systems to tie this information together with subscriber data and that both their technical and billing systems came back with the same information in this case, that the subscriber indicated by the IP address and date and time in question was a J. Tenenbaum of Providence, RI.

He stated that Cox sent a letter to the subscriber indicating that someone had subpoenaed information about their service in a civil case. He also pointed out when asked about specific sections in the Cox Acceptable Use policy in regards to copyright. He stated that he had no doubt that Cox identified the correct subscriber in this case.

On cross examination Mr. Matteo was asked about the letter he sent, which had the language that a lawsuit had already been filed in comparison to the initial letter sent by Plaintiffs indicating that they file a case if the issue was not resolved. Professor Nesson asked Mr. Matteo about the case Fonovisa v. Does 1-76 in which the subpoena was issued. He also asked Mr. Matteo about the subscriber name of J. Tenenbaum, and introduced Joel's mother Judith Tenenbaum.

James Chappel

Mr. Chappel is a high school friend of Joel. He was asked by Plaintiffs about the PC in Joel's Providence home located in Joel's bedroom. He was asked if he'd ever used it, to which he had indicated that he had used it to check e-mail on rare occasion while he was in high school. He was asked if he'd ever used KaZaA on the PC or any other in the Tenenbaum home, to which he said he had not. He testified that he had never used the sublimeguy14 username, knew what filesharing was, and had seen some 'blank' CDs in Joel's bedroom while he was in high school. He also testified that he had heard Joel brag about obtaining music free on the internet while he was in high school.

On cross-examination Professor Nesson asked if he was mad at Joel for implying he may have used KaZaA on the computer in his bedroom. At first Mr. Chappel was hesitant to answer, but did indicate he was annoyed by the fact. He testified that he had not been deposed in the case, but did 'sign something' for Plaintiffs. After a sidebar conference a letter written to Plaintiffs by Mr. Chappel was introduced indicating that he had often heard Joel brag in high school about always having the latest music and getting it from the internet. He indicated he wrote the letter along with a statement he was sent by Plaintiffs and signed that was written 'in their words' because he felt he wanted to submit something that he wrote in his own words.

Dr. Arthur Tenenbaum

Joel Tenenbaum's father was the last live witness of the day, being asked by Plaintiffs mostly yes or no questions about artists his son liked, and whether or not he had ever seen Joel use KaZaA. He testified that he had seen Joel use KaZaA and even was shown by him the process of using it at one point to try to obtain music that was more in his fathers taste. He also indicated that he had called Joel after reading about lawsuits during Joel's freshman year of college to caution Joel not to do it. He testified that Joel had told him that you would only be sued if you 'did it a lot'.

Tova Tenenbaum and Abagail Nathan

Deposition testimony was read from Tova Tenenbaum and Abagail Nathan, Joel's younger and older sister. Both testified about Joel's music tastes and that they never saw anyone else use the computer for downloading music and had never done so themselves. Tova indicated that in Joel's car which she now drove he left several burned CDs.

Commentary & discussion: