Friday, July 17, 2009

Court allows web demonstrations, with limits

Judge Nancy Gertner has issued the following order in the Joel Tenenbaum case in response to Tenenbaum's Motion in Limine re: Access to Internet during trial (plaintiffs' response here):
Judge Nancy Gertner: Electronic ORDER entered granting [877] Motion in Limine With Respect to Internet Access: All of the parties have internet access in courtroom 2. The issue raissed by these pleadings is what will be demonstrated to the jury. Defendant seeks to demonstrate how p2p programs operate and how alternatives to p2p networks,"such as iTunes" work. Plaintiffs oppose because they have had no information with respect to what precisely will be shown to the jury. While the Court has no problem with a demonstration of the technology at issue here, there are the following caveats: First, the defendant is required to show the plaintiffs precisely what screen shots he will use; second, the only screen shots which are relevant are those which reflect the technology available at the time of the alleged infringement. (For example, there is a question concerning whether iTunes was available at the time of the acts in question; moreover, Kazaa has a different interface and ownership now than it had at the time of the alleged infringing acts.) If the defendant wishes to use a demonstration of the sort reflecting in these papers, he is ORDERED to allow the plaintiffs to preview it. The Court notes that such a demonstration can take place at the time of the pretrial conference on July 20, 2009. (Gertner, Nancy)
This appears to give plaintiffs what they want: prior notice of what Tenenbaum intends to demonstrate to the jury. In addition, the limitation to showing "technology available at the time of the alleged infringement" is quite significant. The date of the detected infringement in this case was August 10, 2004. Obviously the Internet has changed a lot since then. I'm not sure how Tenenbaum can show live web pages in 2009 with any assurance that they indeed "reflect the technology available" five years ago.

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