Friday, July 31, 2009

An interview with a Tenenbaum juror

Shortly after Friday's verdict in the Joel Tenenbaum case, I had the chance to speak with Dr. Donald Moran, one of the jurors who ordered the BU grad student to pay $675,000 for infringing 30 of the record labels' songs by uploading and "sharing" them on the KaZaA peer-to-peer network. Moran is a 40-ish physician, a specialist in internal medicine at a Cambridge hospital who also teaches at Harvard Medical School. He was reluctant to discuss the jury's deliberations in any detail, but was willing to share his impression of various of the players and issues. I can't say whether Moran's views are typical of the other jurors, but I found his impressions quite interesting.

On the jury deliberations:
We worked in a spirit of true compromise. We worked very well together. It wasn't easy to get to a number.... The jurors were very fair, very diligent, very careful. It gave me confidence we made the right decision.
On Joel Tenenbaum:
He was a very likable young man. It would be very interesting to talk to him personally.
What did he think of Tenenbaum's conduct? Did he find it morally culpable, or simply typical behavior of people in the defendant's generation?
There was an element of culpability. But I also recognize there are a lot of people in the same boat.
What does he think about the record labels' litigation campaign against individual peer-to-peer users?
We wish there was another way that all parties could be satisfied. But this is a business, and they have the right to enforce their rights.
Did Tenenbaum's admitted lying in written discovery responses and at his first deposition play a significant role in the jury's award of damages?
I don't think it had much impact. Our verdict was based on the evidence already provided. The plaintiffs' evidence was very comprehensive.
What was his impression of Tenenbaum counsel Charles Nesson?
He was very interesting. It would be fun to sit down and talk with him. There was a minefield of facts he had to negotiate. He approached it in the best way he could. He was very persuasive.


  1. I do not understand how people like this juror could ruin the life of a human been so lightly. About Tenenbaum: He was a very likable young man. It would be very interesting to talk with him. B.S. About Nesson: It would be fun to sit down and talk with him. Ridiculos and discusting. These guys do not have a ounce of humanity. Besides they do not understand anything about new technology and new generation and buy biased facts presented by RIAA's very expensive lawyers and experts. I feel sorry for their incapability to see the harm that they did, much more grave than the harm Joel did to RIAA's Jaggernaut.

  2. @Anonymous 9:41:

    I don't think it's fair to accuse this juror of doing anything "lightly." He was very serious and thoughtful, and made clear that the jurors took their responsibilities to heart. And I got the sense with comments like his about Joel that he was leaning over backwards to be polite to everyone involved.

    You may disagree with the result, but don't attack the jurors who came to this conclusion after spending almost a whole week listening to the evidence.

    It's ridiculous to suggest that the plaintiffs presented "biased facts." The facts were the facts -- and Tenenbaum himself admitted to them, unequivocally (after previously lying about them).

    And you have no idea whether the plaintiffs' lawyers and experts were "very expensive." While I don't know exactly how much HRO was paid, I do know that one of the reasons the labels retained a Denver-based firm was because of lower rates than those in places like LA, NY, and DC. Plaintiffs' expert Doug Jacobson testified that he was being paid $200/hour -- which, as anyone who has been involved in litigation can attest, is extremely low for an expert. I don't know how much plaintiffs' economist Stan Liebowitz charged (he wasn't asked on the stand), and I doubt you do either.

  3. I've served on both petit and grand juries on multiple occasions. Trust me, people will throw away someone's life without skipping a beat or losing an ounce of sleep over it. While I can't say that's exactly what happened in this case, the fact that they took a mere three hours to come up with such an astronomical figure gives me pause.

    I also wouldn't put too much stock in any particular juror's self evaluation of their handling of the case. Does anyone expect any of them to say anything other than something along the lines of - we did our jobs fairly and to the best of our ability - ?

    Tenenbaum's guilt was never seriously in question. But $22,000 per song is simply indefensible and tells you all you need to know about the jury presiding over this case.

  4. What a hypocrite. I liked Tenenbaum so much I had to bankrupt him. This inhuman sentences will leave unforgettable deep scars on RIAA public relation. Who downloads will continue to do it and people like me will look for music in other domains since RIAA is not the music industry (thanks God).

  5. @Ben Sheffer

    I don't know what world you're living in but to those of us who aren't coparate lawyers or physicians 200/hr is expensive. While we don't know what the riaa paid their lawyers and other experts, there's no denying that the plaintives had far more legal resources than an indigent defendant with pro-bonno representation. Yes the riaa could have spent more but the when is that ever not the case?

    Perhaps those off us with normal salaries have an easier time understanding the absurdity of the damage award.

  6. The Problem is not the Jury its the Law itself!

    How can even 750 $ per song be justified is beyond me!

  7. @Anonymous 12:53:

    No doubt $200/hour is expensive for any individual (certainly including me) who would have to pay that out of pocket. My point was that $200 is actually low in comparison wiht what most litigation experts charge; I'm aware of some experts who charge close to $1000/hour.

    And keep in mind that much of the litigation expenses could have been avoided if Joel had said months or years ago what he said on the stand this week: "I did it." There would have been no need for experts like Jacobson to provide evidence of his use of p2p if he had admitted it instead of lying under oath.

    And he could have settled this entire case for $4,000 instead of having a judgment for $675,000 hanging over his head.

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  9. I'm no rich guy, but the law is clear and everything is about context. Joel's choices these past few years are egregious by any standard of reasonable, lawful behavior. He lied, he willfully ignored official warning and his own Father's wise advice, he tried to blame his own sisters. Incredible. And STILL the jury was apparently sympathetic and went easy on him, requiring only 15% of the possible maximum.

    Ben, is Joel's Mother, a Massachusetts lawyer, in hot water for counseling her son to lie under oath in deposition? Was she acting as a Mother (not liable) rather than an attorney? (liable)

  10. Re: "He could have settled this case for $4000": actually (and I think Mr. Schefflerr knows this) Joel tried to settle three times. Once the plaintiffs returned his uncashed check, and twice they replied by raising the amount. As their lawyers knew, this despicable bait-and-switch tactic is protected by federal rules so the jury couldn't hear about it. Would the jurors have still held Joel responsible if they could have known about his willingness to settle, and the sorts of tactics used against him? Was the industry doing this to goad him into court? This powerful (and yes, Mr. Scheffler, expensive) legal team may have played hard by the rules, but let's not pretend that there was honor or fairness in their behavior, or proportionate justice in the outcome.

  11. I know this comment is irrelevant to any matters at hand, by I find it interesting that so many commenters refer to Mr. Tenenbaum as "Joel"...almost as if he is a close, personal friend.

  12. Liebowitz states in his report that he makes $500/hr for these reports, making him yet another fat middleman taking way too much of the $$ consumers wrongly think go toward the artists whose music they buy.

  13. @Brent 7:29:

    First, if you're going to post here, please at least spell my name correctly. It's not hard; my name is all over this blog, including in the title and at the bottom of every post.

    Second, the plaintiffs did not engage in any "bait and switch." As in just about any case, the price of settlement rose as the case progressed and the plaintiff was forced to spend more money litigating. Settlement is usually cheapest at the beginning. And Tenenbaum was forcing plaintiffs to spend money in opposing his numerous frivolous motions, including his absurd motions for summary judgment and for sanctions. And it's Evidence 101 that FRE 408 bars (in most circumstances) the admission of settlement discussions, as Nesson, an evidence professor, well knows.

    Third, no matter what you insist, HRO is not expensive compared with other large law firms.

    Fourth, if Tenenbaum had the best, most expensive law firm on earth, they would have told him the same thing that any semi-competent lawyer would have told him: Settle, settle, settle! Settle before you force the plaintiffs to spend money. Settle for anything lower than the minimum possible award of $750 per work ($22,500). Don't go to trial; the result will be disastrous. Instead, he lied, denied the obvious, cranked up the PR machine, filed frivolous motions, made outlandish legal arguments, and succeeded in annoying a judge who appeared to be quite sympathetic to him (before all of his and his counsel's antics wore thin). Because of his own (and his counsel's) behavior, he ended up famous, and perhaps a hero to some, but 25 years old and drowning in debt.

  14. @Anonymous 8:02:

    I think the references to "Joel" are exactly what he and the defense team wanted. They called their web site "Joel Fights Back," not "Tenenbaum Fights Back." At every turn, they referred to him as a "kid" to make him look sympathetic, and the labels like bullies. "Kids" are named "Joel"; adults, who are expected to obey the law, are "Mr. Tenenbaum."

  15. The world of adults who get randomly a common person in a pool of millions, and put him on trial to teach a lesson? In that case I hope I'll never be an adult. When millions of people do something against the law it means that downloading music is not perceived as wrong. Educate people and don't terrorize them otherwise you will look evil, spend your money in a more productive way.

  16. @Anonymous 8:40:

    Thanks; I had forgotten that his fee was listed in his report. While $500/hour is certainly a lot of money, I have seen expert economists who charge much, much more.

  17. Ben, thank you for your post. As for those commenters who buy into the "big corporate entities are bad, poor penniless students are good" hogwash, they have completely ignored Mr. Tenenbaum's conduct for the past ten years. "Joel" chose to break the law, defiantly, remorselessly, even when faced with legal action. He should not have admitted his culpability on the stand with such a carefree attitude. He should have said, "It was wrong, and I knew it was wrong, and I knew that LYING to the court is wrong. I take full responsibility for all my actions, period."

    The entire "Joel Fights Back" team should hang their heads in shame for even going forward with Mr. Tenenbaum's defense. This is not about big corporate entities destroying a single individual's life. This was about ruling right vs. wrong, and in this case RIAA (much as I loathe their very existence) is right, and Mr. Tenenbaum is wrong.

  18. I think this interview was crap. What older people have to understand is that us younger people are growing up with a different mind set than what they had and they don't understand where we are coming from. Technology has changed and you have to change with it otherwise we would be living in caves and making stones from fire.

    If he liked Joel than he wouldn't of ruined his freaking life. This guy is a tool and I wish I could sit down and talk to him.

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  20. Anonymous 5:14am

    "Why should he even pay 4000$ without any real evidence that he DISTRUBUTED the files(Media Sentry had none whatsoever apart fron the 5 songs)"

    I think you're overlooking one small piece of evidence -- the defendant's own admission that he knew he was illicitly copying and distributing the songs at issue

    "The RIAA still refuses to provide hard facts."

    What other facts do they need? They have his IP address, evidence of thousands of song files available for download, a sampling of songs showing that they are legitimate, and the damning testimony of the defendant himself.

    "You know that the owner of BMG in germany(its near where i live) is worth 3 BILLION $."

    And maybe they'd be worth more if people, you know, actually paid for their product.

    "With the 4000$ is like some send a letter telling you to pay up regardless even if you DIDN`T load these files(like Anderson in Oregon) if you don´t we will RUIN you!"

    Except for the fact that, in this case, like in virtually all the others, the recipient actually did it.

  21. bbliss17 -

    "What older people have to understand is that us younger people are growing up with a different mind set than what they had and they don't understand where we are coming from."

    If, by a different mindset, you mean actually thinking that one has to act responsibly and pay for the items that they consume, then yeah, what were those crazy ass jurors thinking?

    I don't care who you are or when you were born, there is no societal norm that you are entitled to the free work of others without compensation. It has never been this way throughout the history of human creation, and it certainly never will be.

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  23. The kid didn't do $675,000 worth of damages. This was an obscene judgment I think.

  24. If the new generation is so opposed to this situation, then the proper response is to push Congress for changes to the copyright law on fair use and statutory damages, not to furtively violate the law. Even a case undertaken as public civil disobedience would have more claim to the moral high ground, though the same negligible chance of courtroom success.

    I remain unimpressed with the technical and economic evidence presented by the plaintiffs. But this is not a criminial trial, where any reasonable doubt is an escape hatch. The evidence, viewed from this distance, seems more than enough to justify findings of both infringement and willfulness.

  25. I think that the argument is not if Joel is culpable by law, but is this law fair or not and if it should be changed. You can see my analysis here from three points of view.

  26. It's my understanding that jurors cannot/should not consider 'facts' not in evidence.

    If Mr. T had facts to present on his own side showing his innocence, he had a chance to do so.

    That he admitted guilt means the trial wasn't necessary.

    Now we're just quibbling over the effects of the law.

    Moral of story: don't repeatedly break a law.

  27. Sorry about misspelling your name, Mr. SHEFFNER, after all your hard work on this blog.

    On the question of "Settle, settle, settle!": yes, that's clearly the smart-money opinion of the legal establishment, and yes, Joel would arguably be better off owing $20,000 (if the labels stopped upping the ante at that point--hard to say) rather than $675,000. (Of course if he's really bankrupted the calculation of his best interest might change.)

    But from a larger perspective, where do all those tens of thousands of 'settled' lawsuits leave the rest of us? They prove that corporations can use their powerful legal weapon to bully most everyone into submission, but is that what we mean by 'justice,' 'rule of law,' etc.? It's easy in retrospect to say 'Mr. Tenenbaum was a fool for going to court,' but let's presume that his purpose was to demonstrate, by appealing to a jury of his peers, that the ordinary file-sharing he and millions of others engaged in (and still do) actually should be considered 'fair use.' This of course terrifies the plaintiffs, but isn't it a worthwhile question to ask, i.e., put to a jury? For my two cents, the big problem here was that Judge Gertner, for all her apparent bias towards the defendants in these suits, was unwilling to allow that demonstration to go forward. Her exclusion of fair use played straight into the plaintiffs' hand and all but settled the case in their favor--the rest was commentary. But the desire to test such a supposition in the courts, in my opinion, doesn't deserve all the scorn that's been heaped on it. Indeed, the 'smart-money' point of view that says 'pay whatever they ask and stay out of court at all costs' strikes me as deeply cynical, in fact shocking when it comes from people who claim to practice law.

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  29. @Brent:

    Your comment totally misperceives the role of a jury in the US legal system. Contrary to your comment, juries have a specific, defined role: they are the finder of fact. They don't get to decide every issue in the case (and certainly not issues of law), and they must follow the instructions given them by the judge.

    Judge Gertner granted summary judgment on fair use (taking the issue away from the jury), because there was no dispute about the underlying material facts, and, under more than ample fair use precedent, the plaintiffs were entitled to judgment as a matter of law. (She applied a similar standard in granting a directed verdict on liability.) Even Tenenbaum's own proposed experts, who were sympathetic to his cause, unanimously agreed that his fair use argument failed as a matter of law.

    The fair use ruling was not a remotely close call, and a contrary ruling would almost certainly have led to reversal by First Circuit. And yes, I was impressed that Judge Gertner put aside her (publicly expressed) personal feelings about this case and applied the law, as her oath requires.

  30. Ben, considering that BK may not be an option for this judgement, could you explain why you think lifetime penury is a valid punishment for petty theft? Or even grand theft if that's what you think it is?

  31. Does the fact that nearly everyone "put aside their feelings" to reach the conclusion the law demanded bother you at all? Like maybe to consider that the law is unconscionable?

    Decisions like this do NOT strengthen copyright law, they just make it more brittle.

  32. @Kevin 1:22:

    I don't consider what Tenenbaum did "petty theft." And please don't say what I "think," especially when it's not accurate. If you want to criticize something I've written, fine, but quote it directly, rather than mis-paraphrasing it.

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  34. @Anonymous 3:02:

    Is it really that hard to spell my name correctly?

    And I really suggest you stick to what I have written, rather than what you (falsely) believe that I "think."

  35. Ben, since you say that you are glad that the jury, judge, etc were able to put aside their feelings and apply the law (@11:43), I just assume thios meant that you agreed with the judgement.

    If this is not the case, I apologize.

    If it is the case, however, why do you think that a life-long debt is a valid punishment for a non-violent crime that had economic damages measured maybe in 4 figures?

    Do you believe this will deter more than it enrages?

  36. @Kevin:

    You misquoted me once again. I did not write that the jury "put aside their feelings." Of course jurors bring their feelings, attitudes, backgrounds, etc. into the deliberations. But, yes, I do believe that they followed the law, which permitted them to award the damages they did.

    I don't know what the right amount of statutory damages were in this case. No doubt $675,000 is a very big number. I do know that statutory damages are about more than compensation; they're also about punishment. See, e.g., Los Angeles News Serv. v. Reuters, 149 F.3d 987, 996 (9th Cir. 1998) (“Because awards of statutory damages serve both compensatory and punitive purposes, a plaintiff may recover statutory damages whether or not there is adequate evidence of the actual damages suffered by plaintiff or of the profits reaped by defendant, in order to sanction and vindicate the statutory policy of discouraging infringement.”).

    Do I believe this will deter more than it enrages? Impossible to know. It's also quite possible that the same person could be enraged by the verdict, but, because of it, deterred from illegal p2p use.

  37. A note to commenters (and one in particular):

    If you are the kind of person who wishes death upon those with whom you disagree, you are not welcome to post here. You know who you are, and I will delete your comments without warning.

  38. I'm taken aback by the expressed belief of several commenters here that, because technology has made it so easy to quickly and accurately make copies of someone's songs, something basic and essential has changed about property rights - the implication being, to me, that when the tools of theft become so easy to use that anyone and everyone can use them, theft somehow becomes acceptable, and a valid moral choice.

    Not so, children. You need to travel back to that point in your life when you somehow became convinced that "getting away with it" was an adequate substitute for morality, and ask to hear that day's lessons again, because you clearly got it wrong the first time.

  39. It seems to me that almost everyone's opinion about this trial boils down to their beliefs about IP. Many members of the pre-digital generations believe -- it seems to me almost on faith -- that "Intellectual Property" is equivalent to tangible property, and deserving of the same legal protections. People also seem more amenable to this idea if they grew up in a middle class household, and thus were not denied access to recorded music by its artificially high price.

    However, most citizens who came of age after the advent of the internet do not adhere to this belief. Instead, they see "Imaginary Property" as an abusive monopoly granted by a corrupt government to its paymasters, and consequently deserving no legal protection whatsoever. Almost everyone of this generation I have spoken with, although they may fear RIAA bullying, perceive file sharing as a perfectly normal and non-criminal activity. Some even perceive sharing files to be slightly virtuous.

    Since both sides see each other as essentially criminal, I do not hold out much hope for a political compromise any time soon. This is especially so given the RIAA's committment to a brutal, scorched-earth policy of legal attack. Probably they will succeed for a few years, while they retain the sympathy of the political establishment. However, I suspect ultimately they will find technology has rendered their entire business model obsolete.

  40. This issue has been around since the invention of a cassette deck attached to a radio, where you could record directly off the radio. This progressed to the double tape deck (remember those?) Where you could dub a persons album and make mix tapes. Everyone thought this would bring about the death of the music industry. Then CD duplication became widely available and the same argument arose. As technology advances quality goes up size and price go down. I think in this situation its about the punishment fitting the crime, and 30 stolen songs don't equal bankruptcy, this is simply not proportional.

  41. All of these commentors saying "intellectual property is different from REAL property" remind me of children putting blankets over their heads to make the monster go away. "If I can't see it then it doesn't exist", sort of thing.

  42. Here's a topic for discussion --

    Why should copyright holders get "special rights"?

    If I maliciously and willfully destroy Susie's toaster, she gets to sue me for (a.) her actual damages, based on the economic loss she has in fact suffered, and (b.) punitive damages, to punish me for my wilful malicious conduct.

    Why should copyright holders get statutory punitive damages when their property rights are violated "wilfully"? Why shouldn't they have to meet the same standards as any other property owner if they want to get damages over and above their actual economic loss in order to punish the wrongdoer?

    If the argument is that punitive damages are too hard to get under the standard tort system, then wouldn't the appropriate correction be to make it easier to get punitive damages in the standard system, rather than create a special right to punitive damages just for the property owner whose property happens to be a copyright?

  43. Moran is "physician, a specialist in internal medicine at a Cambridge hospital who also teaches at Harvard Medical School"?

    Well, that explains a lot. $675K is chump change to this fellow.

    Talk about a "blue ribbon jury"!

  44. Stanley:

    "Why should copyright holders get "special rights"?"

    They aren't "special". They're the same property protections that any other property owner has. You're just ascribing some magic, undefinable characteristic to IP that makes it different from other property.

    Here's the thing to remember: When you're talking about copyright, the "property" in question is not actually the song itself. It's the act of distributing copies of that song. And it is neither uncommon nor artificial to have "property" and value tied up in a nonphysical instrument, as anyone with a pork-futures contract will tell you. (Or anyone involved with negotiating flight slot allocations for airports.)

  45. halojones-fan says copyright holders don't have any special rights -- "They're the same property protections that any other property owner has."

    halojones-fan, if I choose to sue somebody who walked across my lawn without permission for trespass, I can get only the actual economic damages I have suffered by virtue of the trespass (or, more likely unless the trespasser's footsteps ruined a wet cement pathway, expensive freshly laid re-seeding or the like, "nominal" damages of $1.00 or less). As far as civil damages go, this is the property protection that "any" property owner has.

    To get any punitive damages for infringement of my property rights (other than a copyright), I have to prove that the act causing damage was committed with the intent to cause injury to me or my property and was motivated by spite or ill-will.

    If the trespassser, instead of walking over my lawn, infringed my copyright, I could get statutory minimum damages of $750 per infringement (i.e., per copying) and, if I could prove the infringement was "wilful," that amount could be boosted as high as $150,000. Cases applying the relevant federal statute make it clear that the amount awarded, from $750 to $150,000, does not have to bear any relationship to plaintiff's actual damage, because the purpose is to punish the wilful infringer.

    The copyright holder gets these minimum and punitive damages by virtue of a federal statute. No other kind of property owner enjoys similar rights.

    Also, when you're talking about copyright, the "property" in question is the right to exclude others from doing any of the things that USC Secs. 106-122 say the copyright holder has the exclusive right to do (subject to certain exceptions -- and it's Sec. 106 where the most important and generally applicable exclusive rights are defined).

    17 USC 504 (c):
    1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

    (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court
    in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

    17 USC Sec. 106:
    17 U.S.C. § 106. Exclusive rights in copyrighted works

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (1) to reproduce the copyrighted work in copies or phonorecords;

    (2) to prepare derivative works based upon the copyrighted work;

    (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

    (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including
    the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.


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.