Tuesday, June 23, 2009

Best Request for Admission of All Time

From the record label plaintiffs' written discovery regarding Joel Tenenbaum's fair use defense:
Admit that the image attached hereto as Exhibit 1, with the caption, 'Destroy Capitalism, Support Piracy,' is a true and correct copy of an image that was posted to the Internet by your counsel.
Exhibit 1:

Also in Tenenbaum-land, the defendant has filed a motion to compel responses to interrogatories regarding the revenues derived from the plaintiffs' copyrights. The plaintiffs had refused to respond substantively on the grounds that the interrogatories were untimely, as well as overbroad and burdensome. Interestingly, as for each interrogatory, Tenenbaum writes, "Defendant Tenenbaum requests that the plaintiffs be compelled to respond to this interrogatory in a manner they consider fair" (my emphasis). Some loophole! [UPDATE: Judge Gertner has set a hearing on this motion for Monday at 9:30 a.m. Also, a friend emails me that the labels' position is entirely correct; the case law (which I have not read myself) says that where there is a discovery cut-off, the propounding party must serve discovery in time to give his opponents the full 30 days to respond. See Edberg v. CPI, Inc., 2000 WL 1844651, *2 (D.Conn. 2000); Bailey v. Komatsu Forklift U.S.A., Inc., 2008 WL 2674886, *3 (N.D.Iowa 2008) ("parties seeking discovery [must] file their requests sufficiently in advance of the deadline, such that the responses are due by the deadline for completion of discovery"); Smith v. Principal Cas. Ins. Co., 131 F.R.D. 104, 105 (S.D.Miss. 1990).]

Lastly, Tenenbaum has filed a motion to suppress all evidence collected by MediaSentry, the firm retained by plaintiffs to identify p2p infringers, citing the Massachusetts Private Detectives Act, Mass. Gen. Law Ch. 147 § 22 et seq.; the federal Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510 et seq.; and the Massachusetts Wiretapping Statute, M.G.L. 272 § 99:
In orchestrating this campaign, built around illegally obtained evidence and targeted at individuals, most of whom faced millions of dollars of potential liability without the assistance of counsel, these lawyers violated the ethical rules governing our profession on an unprecedented scale. We respectfully request that this Court remedy this ethical violation by suppressing all MediaSentry evidence in this case. In the first recording-industry prosecution to go to trial, the jury returned a verdict of $1.92M, or $80,000 per song for 24 songs. We submit that, with stakes this high, the federal courts should make clear to the world that the kind of gross abuse of federal process that we have seen in the last seven years will never again be permitted.
On June 11, Minnesota federal judge Michael Davis denied a very similar motion by Jammie Thomas-Rasset. The irony of Tenenbaum's counsel complaining of a violation of Massachusetts General Law, Chapter 272, Section 99, is staggering.



  2. Indeed it seems they're teasing the opposing laywers a bit on that one - but who's to complain? They're completely in the right, even if I'm against dropping cases because of dubious sources.

  3. Fascinating reading.

    Thank you so much for the valuable insights contained in your blog.

    The Bats

  4. Is 1.92 million, an amount that many people will never make over the course of their entire lives really an appropriate sum of money to award against someone for copying 24 songs on the internet? Would they have been awarded 24 million of the person had walked out a store with 24 cds? Would most of the people who download 1000 songs actually have bought them if they could not download them, or would they have bought maybe 30-50 instead?

    These vast awards of money have stopped me buying any more music and I've grown quite fond of the radio. 1.92 million is an unimaginable fortune to most people, and it seems wrong to award over a lifetimes earnings to a well heeled industry over 24 songs, completely out of step with the impact copying 24 songs had. I wonder if the people bringing these cases realise they are also turning people off by doing it. Maybe they will discourage a few copiers but considering how tiny the amount of people they can realistically prosecute it isn't going to make a huge dent, and one must wonder if they will end up losing more through ill will than they can gain.

    Does this ever come up? Do Draconian measures work or did Solon repeal them a few decades later because it wasn't going according to plan? Does "Tiananmen Squaring" the populus firmly cement an idological position or cause the worldwide collapse of that ideology? If the record executives react to the threat of losing money by aggressively beating people to within an inch of their economic life and leaving them permanantly financially crippled, is it going to fix the problem? It always amazes me that stubborn people assume everyone else will give in. The world is full of stubborn people.

    Since this appears to be their choice, I guess we get to find out. Tenenbaum never thought he could win, he just threw himself on the RIAA's sword, that's clear to anyone who's been paying attention. I do hope someone who has a stake in the matter wonders the same thing at some stage soon as I don't see right now how this is going to end well for anyone.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.