Friday, July 31, 2009

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


Anonymous said...

Wow ... so in America you are not liable when the law says so, but when you believe it yourself.

How about starting an add campaign that shows a short clip in front of each major cinema film and tells people that using P2P software is wrong ... they just have to believe it.

Der Slom

Anonymous said...

can't wait to see how large the amount is this time.


Anonymous said...

>>"The question : "are you admitting liability" is a legal question".

My thoughts exactly. I believe Tenenbaum is acknowledging having them in his shared folder and, perhaps, assumes liability (for purposes of the question) based on that alone. Surely he doesn't have specific recollection of each and every one of those specific files being transferred/distributed to another user. Given the number of sound files in his shared folder, it's ridiculous to assume (or even acknowledge) that he has the ability to remember each and every transfer.


Unknown said...

I'm thinking he's going to get spanked for the maximum amount.

This is why every lawyer in america always tells you to never ever admit guilt or liability ever.

He's just done.
Sigh, the extortion cases just got worse. I guess our only hope is Britany.

fan of this blog said...

Don't hire a law school professor to defend you. Either he failed to prepare his client or failed to advise him to settle a long time ago instead of grossly overlitigating this case for his own enjoyment. No lawyer worth his salt would ever have invested as much time as the prof. did without getting paid in advance or contemporaneously. I would expect attorneys fees on plaintiffs' side were above a million dollars. That means the prof. invested a similar amount of time on a pro bono basis. The prof. must have had a kinipshin when his client admitted liability on the stand after having denied it for so long.

Anonymous said...

On the bright side, this gives more grounds for appeal.

It seems to me, however that the best case for the Supreme Court would be one that focuses 100% on the basic constitutionality of the damages. For this, we almost need a defendant where the issue of guilt has been decided.

2L student

Anonymous said...

Generally speaking, a defendant can certainly admit liability, I think. The circumstances of this concession (i.e., on the stand) concern me though.


Anonymous said...

Didn't Charlie object to this?

Anonymous said...

Grounds for appeal?

SteelWolf said...

This case has been even more frustrating to follow than Thomas-Rasset. I can't help but feel like an opportunity was lost here, setting up more bad precedent for future cases. I suppose "it will get worse before it gets better."

Anonymous said...

He's just done.

I'm afraid you're right. I was so happy when Nesson came aboard, I thought Joel had won the litigation equivalent of the New York lottery. It couldn't be more obvious that "billion dollar Charlie" is a shadow of his former self. He badly mishandled this case to the point of malpractice.

Unknown said...

I'm just a small-town lawyer, Ray, but I can't believe this ruling from Judge Gertner. Do you know whether Charlie Nesson objected to the question when asked, and if he made the basis for his objection known to the Court? If so, he's GOT to have an appealable issue. Clearly Tenenbaum, in admitting "liability", was thinking of it as a layman would, where "I'm liable" means only that "I did it". The WHOLE TRIAL is about whether what he admits he did imposes liability. Unbelievable, erroneous ruling. Unless, I suppose, the Judge knows she's going to find the statutory damages scheme unconstitutional and wishes to deny Plaintiffs an appeal on a denial of their Rule 50 motion.

raybeckerman said...

Dear lwm, my reaction is the same. It is an outrage.

Anonymous said...

In Joel's eyes and heart, I believe, he knows he pilfered or traded music tracks that were worth 99 cents each. He is admitting liability for that. Fair restitution would be recovery of that 99 cents to the copyright holder, a fine to cover court costs, and legal fees and associated costs for recoverable expenses. Any thing more than that would be a gross injustice and a perversion of the legal system. I do not believe that Joel understands how the RIAA exploits the meaning of "intangibles" given to "copyright" holders that leads to higher culpability.
Our legal system has yet to hold the RIAA (or the Empire they work for) to any standard of ethics when pursuing their suspected copyright infringers.
And the worst part of all of this in the public's eye, Joel has stolen a number of 99 cent songs and may lose his head for it.

Oldphart in Kansas

SteelWolf said...


The whole idea of "pilfering and trading" that you cite is one that was started by the industry itself. As Ray continually points out in this space, there is a massive burden of proof that the industry should be forced to provide to be able to win these cases. Any accused sharer that was properly defended should be walking out of the courtroom with a smile, because the facts are that

-making available does not equal distribution
-downloads do not equal lost sales
-MediaSentry, the sole provider of "evidence," not only fails to meet Daubert requirements, but also is authorized to download songs by their industry clients (meaning no infringement has taken place).

On solid legal grounds I think copyright law as it stands leaves no room for these industry spectacles, and it's only through these colossal disasters in defense that they've gotten this far at all. The plan was simply to intimidate people into playing settlements through massive "Doe" lawsuits and cooperation with universities and ISPs. Their only hope when some of these defendants decided to fight back was that the defense would fail to hit these key points, and it's a shame that that is what has happened in several of these high-profile cases now. The industry is laughing every time they leave the courtroom because they're publicly racking up heads on pikes to wave around in the mainstream media. Even though nearly every plank of their theory has been shot down in other courts, they score huge publicity points every time they win these press-magnet circuses. I keep hoping that a defense will clearly show how the industry lawyers are wrong and smash this tiresome "sue 'em all" business model for good, and once again I am disappointed.

Marc W. Bourgeois said...

Professor Nesson did object to the entirety of Joel being put on the stand. He was sternly warned by the judge that he could not instruct his client to not answer questions which may implicate himself (as this is a civil case) and that doing so could result in a mistrial, sanctions, and contempt of court.

His argument was that since this case was entirely punitive it was in a way almost-criminal but this argument of course was rejected.