Monday, July 20, 2009

RIAA concedes fair use triable to jury if summary judgment not granted, Tenenbaum files pretrial memo

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA filed its "response" to the Judge's question as to whether fair use fact issues were triable to the jury or the judge, and defendant filed his pretrial memorandum. The trial is scheduled for Monday, July 27th.

Plaintiff's response re fair use jury trial question
Defendant's pretrial memorandum
Exhibit A witness list
Exhibit B exhibit list
Exhibit C requested jury instructions

[Ed. note. Although I should be surprised at nothing in this case, I am shocked by both filings.

(a) The RIAA totally ignored the judge's order, and instead used this as an opportunity to put in an additional, unauthorized brief on their summary judgment motion. They never even answered the judge's question, which was whether fair use fact issues are triable to the jury or to the judge. If I were Judge Gertner I would not be pleased by such disrespect and gamesmanship.

(b) The defendant's requested jury instructions contain almost nothing on any issue except fair use. If I were Judge Gertner I would be displeased that defendant's lawyers are leaving it up to the Court to come up with all of the sensitive jury instructions on its own.


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...

Charlie could have at least spelled Mitch Glazier's name right. It's not "Glazer". And it's astonishing he didn't get Oberholzer-Gee lined up eons ago. Note what Charlie says:

"* Defendant cannot currently confirm Prof. Oberholzer-Gee as an expert but intends to call him if logistics and the Court allow. I know this is late beyond set limits but he is the best on the subject."

Anonymous said...

I cannot help but feel that Prof. Nesson tries to get as much stuff in as possible with the view of a battle in appeals court and maybe even at the supreme court.

I mean he is trying to argue points of law, not fact which is purview of the appeals process....

Unknown said...

Joel would be better served just winning the actual trial.

Interested said...

I'd take a guess that neither side really wanted the Judge to find fair use to be an equitable defense. The studios might want to assert a fair use defense in the future against some claim and want it to go to the jury.

Is there a more professional way to say that the Judge is going down the wrong path without coming across as disrespectful? I would think in a situation like this it might be more strategic to contact the other party and try to get on the same page to get the Judge to punt on that question, but that seems pretty unlikely since both sides seem to really dislike each other.

Would it be more appropriate in a situation like this to write a letter to the judge indicating that you're willing to comply with the order but would like permission to consider a partial MSJ as an alternative?

Eric said...

Those are some jury instructions, and I though the RIAA was bad.

They start with the basic 4 rules laid out in copyright law and then go on to add 5 more which I have never seen before. They seem like things for a closing argument, not for jury instruction.

The next instruction goes off on a tangent about burden of proof ( isn't this a civil case? ). Since preponderance of evidence is the standard how will this survive the judge?

raybeckerman said...

Eric, this is exactly what I described in my post, "How Thomas-Rasset case would have played out, had we not been in the Parallel Universe".

The RIAA is "overlawyered" [not in the sense that the lawyers are good, but in the sense that they (a) are numerous, (b) are highly paid, and (c) will say anything regardless of whether it's got a factual or legal basis, or not].

The defendant is underlawyered.

And the Court can be misled by this inequality.

So it's up to Judge Gertner and her staff, who are the only real lawyers in the room, do all the heavy lifting. It falls entirely on their shoulders to sort through the bull being shoveled by the RIAA lawyers, with no assistance at all from defendant's lawyers.

It is really, really sad.