Tuesday, July 28, 2009

My wish list for the SONY v. Tenenbaum trial

This is the wish list I wrote last Friday for the SONY BMG Music Entertainment v. Tenenbaum trial. It's a very simple, very short list. Basically, all I asked was that the trial be in the real world rather than in the parallel universe.

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))

Is that too much to ask? Is there a single thing I have said that is controversial, either as a matter of federal practice, or as a matter of copyright law?


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


jr said...

Not the perfect place to post the question but I live in the Boston area and want to view a good portion of the trial if I can. I was wondering when the public pieces would begin on Monday (if they would) I would assume at least part of the jury selection will not be public?

Anonymous said...

Dream on, Ray. Dream on. :)
We can only hope.


Oh! Who's bring the popcorn?

The Common Man Speaking said...

Ray, the only place you'll find Christmas in July (today, btw) is in Australia, where it's a tradition.

Anonymous said...

Point #4 is about a max of $750 statutory damages per song is certainly controversial. That's not what the statute says. What case law supports your point?

Eric said...

Haven't Tenenbaum's lawyers/his own deposition already stipulated that he ran KazaA, he knew people were downloading from him, and that he understood what he was doing from running other p2p applications like Napster? This is why their case revolves around "fair use".

It doesn't help when the defense all but gives them their case on a silver platter.

Eric said...

I am a photographer and not a lawyer, but #8 seems wrong. A single copyright deposit can contain any number of independent works as long as they are unpublished or part of a collection under the same ownership. So I would say that unless I'm missing something specific to audio recordings I would say each track could be claimed as an independent work.

That said they should be required to produce the deposit copy, a certified copy of the deposit copy, or a retail copy and statement from the copyright office that the specific retail copy entered at trial is equivalent.

Michael Eisenberg said...

Ray, do you think there's any chance this case written about here: http://www.nytimes.com/2009/07/21/us/21bar.html will have any impact on those RIAA suits?

raybeckerman said...

Dear anonymous re point #4 : it's not in the statute, never has been. It's in caselaw and in treatises. I'm not going to brief it here, since I haven't litigated it yet, but a small sampling of the authorities is alluded to in the amicus briefs filed in SONY v. Cloud and SONY v. Tenenbaum and has been referred to in "practice tips" on this blog. There are scores of published cases on the subject.

Interested said...

My wish: cameras in the courtroom. This week, hundreds of applicants across the country are taking bar exams in their respective states.

This could be an interesting trial to watch with un-mushed brains.

Alter_Fritz said...

Can it be you are missing that the plaintiffs are claiming that the complete album that they register is a work for hire i.e. that the *whole* album is *one* work with respect to your copyrightlaws and not the single songs that constitute the complete work.

maybe like a book, where all the words in a certain order are the copyrighted work, and not the single words per itself, since single words are "prior" art? ;-)

Anonymous said...

Under what theory do you make your wish #2? Isn't the requirement that the date of copyright registration be prior to the date of infringement? How are you equating "date of infringement" with the original date the Defendant started using Kazaa technology?

Using this theory, a Defendant accused of violating copyright by distributing copies in written form would trigger a requirement upon the Plaintiff to have copyright registration prior to the time that the Defendant learned to write?

raybeckerman said...

Here's my practice tip on statutory damages being required to bear a reasonable relationship to actual damages, and here's my practice tip relating to statutory damages being recoverable only if the "course of action" began subsequent to the copyright registration effective date of the allegedly infringed work.

Anonymous said...

Dear Anonymous Anonymouses,

Could you please sign your posts?

As for the $750 anonymous. Statutory damages should bear relation to actual damages, yes? If actual damages are very low, as they might be, statutory damages should be small too.

Date of infringement anonymous, Ray wrote a "practice tip" entry on this topic months ago.


Eric said...

I revise my earlier assertion about each track vs each album, but only after rereading the statute.

504.c-Statutory Damages.1 "For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work."

Congress said that if you choose statutory over actual you can only sue once per compilation or derivative work. I can see where you could claim that you could claim that KazaA shared folder represented "a compilation", but I don't think it would fly.

raybeckerman said...

Eric, your comments have been very careless. With respect to almost every comment you've submitted I've been tempted to reject them. In the future I'm just going to start rejecting them without explanation if you don't get your act together.

No one said a Kazaa shared folder would be a collective work.

My ed. note says that an album is a collective work.

Please be more careful in submitting your comments in the future.

Thank you.

Anonymous said...

Ray - be careful what you wish for, i.e. that “the jury should be instructed to award $750 per work it found to have been infringe.” Since the RIAA is going after 30 songs, a verdict of $750 per song would whack Joel for $22,500 - which is enough to make his life miserable for a long time. Do you really "wish" for this to be the accepted “rule” for these types of cases?

raybeckerman said...

1. I'm getting tired of anonymous posters failing to put a handle at the bottom of their posts. from now on, I'm going to be rejecting comments automatically which fail to include a handle.

2. I'm getting tired of commenters failing to do their homework, and submitting thoughtless comments. If the last anonymous commenter had read the blog posts carefully he or she would have seen wish list item number 6, which would limit the number of song files in question to 5, not 30.

3. I'm not wishing for anyone to get hit for $750 per song file. (a) Most cases will qualify for innoncent infringement, which greatly reduces the amount. This defendant happens not to qualify because his attorneys failed to plead innocent infringement as an affirmative defense. (b) The constitutionality of $750, or even $200, is highly doubtful, but is an issue to be determined by the Court AFTER the trial, not during the trial. I have written a brief on this subject which has been filed in this very case!

So no one who has bothered to read what I write could possibly think that I am suggesting that Joel should be liable for $22,500.

Next time I receive a comment like that I'm just rejecting it. I can't waste time like this any more.

Anonymous said...

@Ray and Alter_Fritz


Ray, Alter, here's a link to the NYT article on the recent Amazon Kindle debacle. More importantly, though, it discusses DRM and an upcoming class action suit against Amazon for the mass deletion.

I thought you two would enjoy reading and keeping up on this.