Sunday, August 02, 2009

Have any of the actual issues been dealt with in SONY v. Tenenbaum?

In my last Friday's wish list for the SONY BMG Music Entertainment v. Tenenbaum trial, I isolated the issues which I felt required resolution. Have any of them even been dealt with? Here are what I felt should be the central issues at this trial, in which the defendant had admitted using Kazaa file sharing software to download song copies:

1. If the plaintiffs wish to prove distribution, they should have to prove:
(a) dissemination of copies
(b) to the public
(c) by sale, other transfer of ownership, rental, lease, or lending. See 17 USC 106(3).

2. If the plaintiffs wish to claim statutory damages, they should have to prove as to each work allegedly infringed that its copyright registration effective date preceded the date on which defendant allegedly began using the "online media distribution system" in question. The jury should be required to make findings as to (a) the date defendant commenced using an “online media distribution system” (Kazaa) and (b) the copyright registration effective date of each work they find was infringed. The jury should be instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa. See Practice Tip.

3. Plaintiffs' lawyers should be prohibited from making any reference in the presence of the jury to any copyright infringement by anyone other than defendant or to their business problems or anything else unrelated to a copyright infringement by this defendant.

4. If the plaintiffs have proved a basis for seeking statutory damages, the jury should not be allowed to award statutory damages of more than $750 per infringed work, absent proof of actual damages of hundreds of dollars per infringed work. (There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. Unless there is evidence of defendant actually having been a distributor, the actual damages are as a matter of law something less than the maximum wholesale price of 70 cents, so in that case the jury should be instructed to award $750 per work it found to have been infringed.) See Practice Tip.

5. If plaintiffs' counsel claim that defendant "could have disseminated" a great number of copies "to the public" they should be required to prove that technically, rather than assuming it to be true, and they should be required to prove then that it actually did happen, rather than be permitted to speculate that it might have.

6. Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.

7. Testimony from MediaSentry and Jacobson should be barred under Daubert:
(a) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry is an expert (see USA v. Ganier, 468 F.3d 920 (6th Cir. 2006); therefore its testimony should be barred for failure to provide expert witness disclosure;
(b) Alternatively, MediaSentry documents and testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702

8. In the event that there are multiple mp3's from one album, the jury should be instructed that the album constitutes a single “work”. (See, e.g. UMG Recordings, Inc. v. MP3. Com, Inc., 109 F. Supp. 2d 223, 224 (S.D.N.Y. 2000); Rocking Chair Enters., L.L.C. v. Macerich SCG Ltd. P'ship, 407 F. Supp. 2d 1263, 1268-1269 (W.D. Okla. 2005); King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 864-866 (M.D. Tenn. 2006))
It looks like yet another fake trial in the parallel universe.



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


Unknown said...

Did the words Daubert even once come out of the Professor's lips, or from his pen?

This trial seems to have been more about grand standing, than actually trying to get Joel not to get screwed to the wall.

It's all nice and good to say that their business model isn't working. But, by law that business model is currently protected. The defense mounted looked disjointed and out of focus. I'm sure he's a very fine professor, and I had deeply saddened that his reputation is taking a hit because of this case. But be that as it may, none of the important triable issues that could have made the fact that Joel did in fact download and share music moot was completely ignored.

"Everybody does it" is not a legal defense.

Anonymous said...

Sebastien, in my opinion, it is still an open question as to whether Joel violated the distribution right. Obviously the judge thinks he did, but perhaps the appeals court will disagree.

If Joel could get that issue in his favor on appeal, he might get the damages reduced to a much lower level. Whether he'll try to do so, I don't know.


Unknown said...

It's true.
Also, I'm wondering how the way that Peer to Peer software works falls into the issue.

This is probably why they go mostly after Kazaa and Limewire users.

One of the advantages of peer to peer is this. If I'm trying to download Rb Soul.mp3 what it does is it goes out to all the machines that advertise they have Rb Soul.mp3 and starts a download. It then uses some internal optimizations to put all the disparate downloads together so that if you're getting bits of the file from computer1 and different bits from computer 2, and so on, your finished download could be created out of bits downloaded from 15 different computers.

This is where the tough question comes in. Clearly I downloaded copyrighted matertial. But, did the people running the 15 computers I contacted to download my various pieces? Or does transfering only a few pieces of the copyrighted material make you no liable.
If I took a copyrighted song, and stripped out the vocals into a seperate file, and stripped out the base in a 2nd file, and the rest of the instrumentals in yet a 3rd file. Is the base copyrighted? Are the Vocals by themselves?

I think I'm rambling now. But there's so much unanswered.

What if the copyright act included language that said that punative damages were not to exceed the illicit profit made on the copyright by the infringer?

Anonymous said...

Sebastien, you're confusing P2P with bittorrent.