Thursday, April 30, 2009

RIAA asks court to accelerate June 5th hearing to next week, to rule that Chicago deposition can be taken by telephone, & to consider 'new' evidence

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has made a motion to:

-accelerate the June 5th hearing to next week; and
-take the Chicago deposition of a 'mystery witness' by telephone.

Plaintiffs' motion to accelerate June 5th hearing and for permission to conduct Chicago deposition of unnamed witness by telephone

Additionally, plaintiffs filed a "supplemental memorandum" in connection with a motion they made approximately 6 months ago, on the ground that they it contained "new evidence" they obtained 8 months ago.

Plaintiffs' Supplemental Memo in support of motion to compel discovery responses

[Ed. note. Time, once again, to remind the law students and fledgling lawyers out there not to practice law this way : (a) it is not recommended practice to tell a judge that she should accelerate the hearing date she set for decision of a number of motions, all involving voluminous paperwork, (b) there is no basis in the law for making a motion to compel a deposition without revealing the identify of the witness, the subject matter, etc., (c) it is inappropriate to attempt to submit as "new evidence" in support of a motion evidence which was in your possession two months prior to your making the motion, and (d) it is inappropriate to submit any "evidence" by a memorandum of law. Again I just want to remind you that this case is being litigated in a strange way by both sides, and there is nothing going on that should be emulated. It looks like both sides' attorneys are trying their hardest, not to win, but to lose, the case. Just disregard everything you see. I'm tempted to stop coverage of this case, because... well because I can't bear to watch. I'm going to start taking a poll on that; please respond by comment to this post. -R.B.]

Commentary & discussion:

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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


Jadeic said...

I agree with your final sentiments Ray. This is certainly not the show case that we had all hoped for but, put simply, a débacle.

Cease & Desist


Alter_Fritz said...

wow, so far only the procedures used by the illegal investigators were a secret blackbox thingy, NOW even the witnesses for plaintiffs need to be kept secret!
This is really wow?

What are they fearing? The name will be on the records "after the fact" anyway.
Could it be they fear when the smart public knows the name before he could testify that the smart internet public does some investigational work and finds out that this guy might be a sham (just like the RIAA's "borderline to incompetence" expert Dr. J. is!)?

Alter_Fritz said...

Ray wrote:
"I'm tempted to stop coverage of this case, because... well because I can't bear to watch."

Please, don't do that!
While it might personly as a honest responsible professional lawyer disgust you what RIAA (and defendant) are doing, if you stop reporting this case just like you do report the other cases, then the RIAA has won!

It would not wonder me if THAT is exactly what Tim Reynolds, Eve Goldstein Burton and the other unethical lawyers working for RIAA want to archive:
That one of the most vocal critics of them stops reporting about their evildoings!

Don't stop it Ray.

raybeckerman said...

So the score is:

Ayes 1

Nays 1

Will update as appropriate.

No stuffing the ballot box.

Eric said...


A deposition of a plaintiffs witness that is expected to last 90 minutes is "short"?

The rest of the document sounded like the class brow-nose running up to the teacher and blabbing for 5 minutes on little Timmy and how they should get a gold star.

Eric said...

More rambling on my part.. IANAL and I was already confused.

1) Is it normal to disclose lawyer to lawyer negotiations minutia like this? Plaintiffs asked for one thing, Defendant countered with an offer, isn't that what negotiations are about?

2) Plaintiffs have obviously already served this mystery witness with subpoena. The witness has their own counsel, but can't tell the court who the person is and the nature of their depo? Shouldn't the witnesses lawyer be requesting seal here?

3) Considering that we are taking the plaintiffs counsel's word that the witness would oppose audio recording then can we presume that this witness will be a patsie for the plaintiff rather than adding some real information to the case.

I'm just confused.

raybeckerman said...

You can certainly assume the witness is someone the RIAA likes; they've never had the slightest bit of concern for the privacy of their victims, or their victims' relatives and friends.

Alter_Fritz said...

Noteworthy is IMO how Eve Goldstein Burton "lies" when she claims that defendants counsel recorded the February telephonic "informal" status conference.

Charles had his little black olympus running like he apparently normally did when he has sessions with his students. [Hi Team T, good for the 403 now ;-) ]

Judge Gertner asked if there is any recording going on, and after acknowledging that defendants counsel had over a handful of students live listening and of course his recorder running in this settings, he turned it off after the judge told him to do that.

So Eve Goldstein Burton In my opinion lies when she claims that the procedure was recorded by defendants counsel!

And with respect to the mentioning of the recording of the Tenenbaum deposition:
Eve Goldstein Burton herself noticed that Charles Nesson was taping the deposition and did NOT asked him to stop after noticing it!

What a b.... is she that she now mentions something she herself had no objections over back then?

raybeckerman said...

Eve Burton has no regard for the truth whatsoever, as evidenced by her lengthy list of deliberate misstatements of fact in her motion for "discovery sanctions" in UMG v. Lindor.

Anonymous said...

To this man, this blog exists to bring a visibility to all of these cases which did not exist before and does not exist otherwise now. As such, not only should the outliers be exposed, but they must be exposed in order to capture the full dimension of the insanity being committed.

As for hiding a "secret" witness, one would think this case involved the Mafia and informants. Mafia...MAFIA...MAFIAA...hummm

{The Common Man Speaking}

Anonymous said...

Please keep following this case. Don't drop it just because one side or another is making a pig's ear out of it. However much you cringe, something good might be revealed during the course of these procedings. Even if the chance of " a great new defence" seems to be withering away with the minute.

raybeckerman said...

Something terrible may come of it too. Leaving out possible defenses, leaving out citations to leading cases, leaving out critical arguments, numerous procedural irregularities. This could wind up creating adverse precedents which the RIAA will use against other people.

raybeckerman said...

In any event, I can't register your vote because you haven't signed in. If I let people vote whose identity couldn't be authenticated, how would we know that it wasn't Matthew Oppenheim doing the voting?

Anonymous said...

Common Man -

I beg to disagree with your analysis.

Not being a lawyer, I don't know if plaintiff's attorney's actions are 'par for the course' in a case of this nature. I kind of tend to doubt it.

(On a side note, if I were on the bench, I think I would likely be considering some pretty serious sanctions for plaintiffs at this point. But then, that's just the common-sense opinion of a layman.)

My own take is, plaintiffs are worried that if the name of their witness becomes public, some enterprising soul will find a way to impeach him/her.

-Quiet Lurker

Eric said...

Keep following it; win, loose, or pillow fight with the judge it will be referenced moving forward. I don't think it needs quite the blow-by-blow with every screwy filing, but it needs to be followed for posterity.

Anonymous said...

To continue or not?

My own thoughts call for the coverage to continue.

This particular case does seem to have gone off into 'la-la land,' it's true, but I get the sense that an end might be near. Why? Don't know, just do. Under that rubric, I'd say continue.

I suppose you could also point to some high-minded 'principle of the thing' - equal protection, it's what the public wants, or just why quit when you're ahead.

Personally? I feel I'm at or near a cliff-hanger at this point. What's going to happen next? Enquiring minds want to know.

-Quiet Lurker

Unknown said...

I vote for continuing coverage. Sure, the trial is a debacle, but unfortunately, it could end up being an important debacle for all concerned with other cases.

Anonymous said...

I suspect that the RIAA has found someone who they have promised not to prosecute in exchange for testimony, and they intend to use the new witness to provide proof that Joel connected to their computer using the P2P program. This would leave Joel with little option in "the prove that I connected with another" department, and may be a new bottom for the bottom feeders. Don't put it past them. What current cases have been filed in the Chicago area that might shed some light?

Kevin R. Guidry said...

Please keep covering this, Ray. It's interesting and potentially important. And it's certainly entertaining though macabre.

raybeckerman said...

Updated tally:

Ayes 4

Nays 1

Dave, I guess we're in the company of masochists. Let's see if any more votes come in. The pro-RIAA blog has publicized my poll; unfortunately only about 3 people read it.

raybeckerman said...

I guess the thing about the Tenenbaum case is that all the responsibility for a rational outcome rests on the shoulders of Judge Gertner. She's getting little or no help from the lawyers.

The way it should be is that each side should present in a professional manner the facts and the legal authorities that support their point of view; and then the judge, having had the issues and materials presented to her, decides. She shouldn't have to do it all herself.

So let us hope for good results.

Thing is, Judge Gertner had a 4 1/2-year history of doing nothing but help the RIAA walk all over people. And she gave them additional economies of scale that were unavailable to the defendants.

And then around a year ago she seems to have shown some resistance to being used by the RIAA as their personal enforcer.

Her decisions regarding subpoenas, although still mostly discomforting, at least showed a keen mind, a conscientious approach, and some sense of fairness. Her decision on the narrowcast conveyed to me that she has finally realized the hypocrisy of the RIAA lawyers.

She is considered a top scholar of constitutional law, and her March 31, 2008, decision in Arista v. Does 1-21 supports that.

So let us hope that she does something good, perhaps on the unconstitutionality of the RIAA's statutory damages theory, that will serve as a positive precedent for other cases.

raybeckerman said...

Updated tally:

Ayes 5

Nays 1

Anonymous said...

if you're going to keep covering it, can you drop the holier-than-thou attitude in your editor notes?

RTP said...

Ray - train wreck that it is, coverage is important. I vote aye.

Also, regarding what you call the "The pro-RIAA blog" - I have submitted comments to the BS guy that he should be honest and change the name of his blog to "RIAAvsRayBeckerman", but for some reason the fair and unflinching comment moderator never allows a comment like that to be posted.

raybeckerman said...

Answer to Anonymous's question:


raybeckerman said...

Updated tally:

Ayes 6

Nays 1

I guess there appears to be a consensus that I have to continue coverage.

Oh well.

Alter_Fritz said...

Ray wrote:
The pro-RIAA blog has publicized my poll; unfortunately only about 3 people read it.

I don't know where you get your statistics from, but from what i can see this seems plausible.

Remember the rapidshare file I posted here?
long before Team T referenced it, and before Mr. Sheffner mentioned the link (he did without attribution!) it had nearly 300 downloads already.
The Sheffner comment "exclusive one" about your verbal boob has so far exactly: Downloads: 1 Letzter Download: 29.04.2009 01:55:07 (and that one was he himself checking what the file was before switching my comment live afterwards)

So you could probably be right with your analysis about his readership.


Anonymous said...

I like your comments Ray, they help me make sense of what's happening. Sometimes the only way I can figure out if the outcome was good or bad is your "holier- than-thou" attitude. In fact, I would like to ask you for even more editorial notes. Not all posts have them and they do help make sense of such a strange case.

Tony D. said...

I also agree Ray, it really seems to be turning into a real dog-and-pony show, without the dogs and ponies. I'm not sure you should pull the case though, there's way too much to be learned by observing the mistakes of others and seeing with your own eyes what *not* to do.

On the subject of that "mystery witness": I think the RIAA attorneys have watched the Star Chamber too many times.

raybeckerman said...

I think Tony D's vote was a yes. If I interpret it correctly, the count is:

Ayes 7

Nays 1

Tony D please correct me if it was not a yes, but an abstention.

raybeckerman said...

Scott weighed in with a comment, but I deleted because he was flaming a bit.... So here's an edited version of Scott's comment, plus an updated vote count.

Scott said:
IANAL so I don't know if my vote counts, but anyway...

I think you should keep reporting the case, but add a caveat lector in each post warning the reader that, in your opinion, both sides have litigated the case poorly.

As for the ...[remark] about "holier-than-thou," ... [I respectfully disagree].
Updated totals:

Ayes 8

Nays 1

Anonymous said...

Since I don't sign in there's no guarantee I'm me, but anyway. (How about "+ε"?)

Might as well keep covering it. Somehow it seems we've been listening for too long to stop now. And regardless of the quality of the litigators, it is news.

And really, is there any chance the judge would allow the shady deposition or the acceleration? Considering the long and often-tangential case history, I speculate it's unlikely.


raybeckerman said...

Received another yes vote by email.

Ayes 9

Nays 1

raybeckerman said...

Ayes 10

Nays 1

Anonymous said...

xyzzy -

Much as I dislike saying this, I have the unpleasant feeling the judge will allow it.

Ray, a little punditry, if you please? Is the production of a surprise, mystery witness at the last minute a common thing in civil cases? And, whether it's common or no, how do the courts tend to view it in your experience?

I guess my thinking is, due process might be implicated, because that could limit the opportunity to voir dire or otherwise look into the witnesses qualifications, conflict of interest, etc., and prepare effectively. Or am I totally off the mark with that one?

-Quiet Lurker

raybeckerman said...

Highly unlikely the judge will advance the hearing date.

I don't know anything about the witness or the reason for the deposition in view of the mysterious motion papers so I can't predict how that will play out, except that I don't think the judge would allow any recordings other than by a licensed court reporting agency's videographer.

Depositions are not open to the public.

jr said...

It's definitely an odd case but is going further then many others before it in the defense against the RIAA (and in many cases showing the RIAA's own stupidity) Wow its odd I think you sort of have to cover it because of the potential for important rulings and information to come down from it, even if the real importance is in appeal.

raybeckerman said...

Ayes 11

Nays 1

raybeckerman said...

Well I guess I'll stay with it, for now, but I'm not guaranteeing that I will continue covering it.

It's a bunch of nonsense; it could be harmful to other defendants; it's drawing attention away from the important issues.

Right now the two most important RIAA cases in the country are both coming up for argument in the US Court of Appeals for the 2nd Circuit: Lava v. Amurao and Arista v. Does 1-16. These cases deal with many of the most critical issues in these litigations, and are being handled expertly by Richard A. Altman.

I'd rather think about them.

Tony D. said...

My earlier comment was indeed an "Aye" vote. Sorry about the vagueness. -T

Anonymous said...

Gee Ray,

If you stop following this one, there goes the comic relief.
I'll then have to figure out something else to do with this big bowl of popcorn. :-)


Anonymous said...


As a layman interested in this case, I very much appreciate your coverage of it. In fact, your so called holier-than-thou attitude provides meaningful context that helps me to understand the proceedings.

Anonymous said...

i think you should keep covering it. your comments about the immense flaws in their legal strategy and practice are really important.