Today we learned that just yesterday -- almost three months after the March 30 deadline -- Tenenbaum has disclosed a brand new expert. And that new purported expert, Wayne Marshall, happens to be married to the daughter of Tenenbaum's counsel, Harvard Law School Professor Charles Nesson. According to his official Brandeis University biography:
Wayne Marshall is the Florence Levy Kay Fellow in Ethnomusicology for 2007-09 and will be teaching courses through the Music and African/Afro-American Studies Departments. Specializing in the intersections between Caribbean and American popular music, he received his doctorate from the University of Wisconsin-Madison in 2007. His dissertation, Routes, Rap, Reggae: Hearing the Histories of Hip-hop and Reggae Together, examines the musical interplay between Jamaica and the US in the late twentieth century, following a particular set of melodic figures across several decades to illuminate the role that technology, migration, and mass media have played in the ongoing formation of hip-hop and reggae as (trans)national musics advancing an intertwined cultural politics of blackness.All very interesting, but the relevance of Marshall's background in ethnomusicology to the issues in this case elude me. Putting aside the apparent lack of relevance, I can't imagine Judge Gertner (who says her "indulgence is at an end") permitting Tenenbaum to add an additional expert nearly three months after the deadline has passed.
Marshall's name first surfaced in a motion filed today, in which the record label plaintiffs ask Judge Nancy Gertner to address various discovery issues at the hearing, including the fact that Tenenbaum himself has scheduled a trip to Italy from tomorrow through July 6 -- despite the fact that Judge Gertner ordered his deposition to be completed by July 3. Plaintiffs have noticed Tenenbaum's depo for July 2, but say they are willing to postpone it (with the court's permission) until July 7. [Corrected; trip to Italy is for an academic conference, not vacation.]
The main purpose of Monday's hearing is argument on Tenenbaum's motion to compel interrogatory responses. The labels filed their opposition today; they argue:
Defendant’s Motion should be denied for three reasons: (1) Defendant failed to confer with Plaintiffs’ counsel regarding the Motion to Compel; (2) Defendant’s First Set of Interrogatories was untimely; and (3) the Interrogatories at issue are objectionable, and not reasonably calculated to lead to the discovery of admissible evidence.That Nesson would have filed his motion without conferring, in violation of both Rule 37 and the District of Massachusetts Local Rules, is particularly shocking given that Judge Gertner has previously lectured him on precisely this issue:
The Court notes with displeasure the continuing difficulties with the meet-and-confer requirement imposed by Fed. R. Civ. P. 37(a) and D. Mass. Local Rule 37.1. These Rules require that the Defendant confer in good faith with opposing counsel prior to filing any discovery motion, in an effort to resolve discovery disputes without recourse to the Court, with the purpose of reducing litigation costs for all.... Nothing entitles the Defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the Local Rules of this Court, or to dispense with them where they fail to suit his counsel's teaching style.Judge Gertner can easily dispose of Tenenbaum's motion on either of the two procedural points the plaintiffs raise, without even reaching the substance, and would be more than justified in granting the attorneys fees that the labels seek.
UPDATE: Recording Industry vs. The People has posted an unsigned copy of Marshall's expert report. It more than confirms my suspicion that his opinions, while they may be perfectly appropriate for academic discussions of ethnomusicology, are simply irrelevant to this case. For example, here's Marshall purporting to offer an opinion on the issue of transformativeness and fair use:
Listening is an active process, a rich domain of interpretation and imagination, manifesting differently – according to personal idiosyncrasies and cultural mores alike – for each person and in each moment. As anthropologist Steven Feld explains in the oft cited “Communication, Music, and Speech about Music” (Feld 1984), the listening process is, when one considers all that is potentially involved, an enormously complex phenomenon very much centered on the particular listener in question. According to Feld, listening as an act of “musical consumption” involves, among other things: the dialectics of the musical object itself (text-performance, mental-material, formal-expressive, etc.), the various interpretive moves applied by the listener (locational, categorical, associational, reflective, evaluative), and the contextual frames available at any moment (expressive ideology, identity, coherence).I'm the first to admit that I managed to graduate from college and law school without reading a word of Feld, Barthes, or Jenkins. But I've read more than enough fair use opinions to be confident that judges do not consider their views on "musical semiotics" or "literary and media theory" to have the slightest relevance to fair use analysis. If anyone can point me to a single fair use opinion in which a court has relied on the views of an ethnomusicologist, literary theorist, or musical semiotician, I'd be happy to reevaluate my opinion.
All of this activity is inextricably social in character, regardless of the musical object in question. As Feld notes, “We attend to changes, developments, repetitions--form in general-- but we always attend to form in terms of familiarity or strangeness, features which are socially constituted through experiences of sounds as structures rooted in our listening histories” (85).
While grounded in communication studies and musical semiotics in Feld’s study, such an interpretation – centering the socially situated hearing subject rather than the musical object (whether live performance or mp3) – is also consistent with a great deal of literary and media theory from the past thirty years, from Roland Barthes’s infamous 1977 “Death of the Author” to Henry Jenkins’s contemporary theories about spreadability and value.