Sunday, July 26, 2009

The Joel Tenenbaum case: Frequently Asked Questions

The trial of accused peer-to-peer infringer Joel Tenenbaum is set to get underway July 27 in Boston. Below are some frequently asked questions, which I will update as events warrant. I've been up front about the fact that I'm sympathetic toward the plaintiffs, but I've tried to play it straight in these FAQs.

What's the case in a nutshell?
Five major record labels have sued a Boston University graduate student named Joel Tenenbaum in federal court in Boston, alleging that he used the KaZaA peer-to-peer network to infringe copyrights in 30 sound recordings that they own. This is only the second of about 18,000 similar cases against individual accused p2p users to have made it all the way to trial.

Who are the plaintiffs?
SONY BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records LLC, and UMG Recordings, Inc.

Who is the defendant?
Joel Tenenbaum is a 25-year-old graduate student in physics at Boston University. He attended high school in Providence, Rhode Island, and then Goucher College in Baltimore.

What about the RIAA? Isn't it suing Tenenbaum?
The Recording Industry Association of America is a trade association that represents the major record labels, including the plaintiffs in this case. The RIAA has not sued Tenenbaum, and it is not a party to the case. The RIAA does play a coordinating role in this and similar cases, though it is ultimately up to the plaintiffs themselves (all RIAA members) to make the decisions regarding the case. Tenenbaum attempted to sue the RIAA for abuse of process, but the court ruled that his claim failed as a matter of law.

Who is the judge?
Nancy Gertner, of the U.S. District Court for the District of Massachusetts. Judge Gertner was appointed to the federal bench by President Clinton in 1993, after a career in private practice as a criminal defense and civil rights attorney. Judge Gertner is known as an outspoken liberal. She had a short-lived blog, and was once forced off a high-profile case by the First Circuit after writing a letter to the editor and granting an interview to the Boston Herald. Judge Gertner is married to John Reinstein, legal director of the Massachusetts ACLU, which has weighed in against the record labels in similar cases.

Several times Judge Gertner has signaled that she disapproves of the record labels' decision to sue Tenenbaum and other individual defendants. In June 2008, speaking generally of these lawsuits, she said to plaintiffs' counsel, "it's terribly critical that you stop it." More recently, she indicated that she "views file-sharing lawsuits as unwise and the statutory penalties a remarkably poor policy judgment" (she used the word "if" before that statement, but from the context it seems clear that she was expressing her own views).

Who are the lawyers?
The lead attorney for the plaintiffs is Timothy Reynolds, a partner in the Boulder, Colorado office of Holme, Roberts & Owen; HRO's Eve Burton has also played a prominent role. Daniel Cloherty of Dwyer & Collora is local counsel and has also been heavily involved. (Judge Gertner was formerly a partner at Dwyer & Collora, though she left several years before Cloherty joined the firm). Other key lawyers on the plaintiffs' side include Matt Oppenheim of the Oppenheim Group and RIAA Senior Vice President of Litigation Jennifer Pariser. Reynolds, Oppenheim, and Pariser just prevailed in the very similar Jammie Thomas-Rasset case in Minnesota in June.

Harvard Law School Professor Charles Nesson is Tenenbaum's lead counsel. Ubiquitously described as "brilliant and eccentric," Nesson has taught at Harvard for over 40 years, with an academic focus on evidence. He is co-founder of the Berkman Center for Internet & Society, a research center that is often critical of copyright owners and their efforts to enforce their rights. Nesson has had a team of law students assisting him (though the team has shrunk to one), and has brought in experienced Boston litigator Matthew Feingold as "special mentor." Kiwi Camara of Houston's Camara & Sibley, who defended Jammie Thomas-Rasset at a similar trial in Minnesota in June, has also filed a brief on behalf of Tenenbaum.

Why has Nesson generated so much controversy?
His litigation tactics have been highly unusual, earning him multiple rebukes from Judge Gertner (who recruited him to represent Tenenbaum pro bono). For example, Nesson has:
Why is this case important?
Several reasons. Perhaps most important is PR -- or, legally speaking, deterrence. If the plaintiffs win, they will herald it as proof that their litigation campaign against individual p2p users was successful in demonstrating to the world that use of p2p networks to download and "share" music without permission or payment is illegal, and has serious consequences. If Tenenbaum wins, it will be a major PR back eye for the record labels, and will be cited as evidence that the litigation strategy was an expensive failure that succeeded mainly in alienating consumers. Various rulings by the court, including on the fair use defense and possible constitutional limits on statutory damages, may set important legal precedent.

What is Tenenbaum accused of doing?
The plaintiffs have alleged that Thomas willfully violated their exclusive rights to reproduce and distribute 30 sound recordings by downloading them and distributing them to others over the KaZaA network. See 17 U.S.C. § 106(1) & (3). The 30 songs are listed here and here.

How much are the plaintiffs asking for in damages?
The plaintiffs have elected to seek statutory damages, which the jury can award in an amount between $750 and $30,000 per work, or up to $150,000 per work (a total of $4.5 million for 30 works) if they find that the infringement was willful. 17 U.S.C. § 504(c). The labels have not indicated that they will ask for a specific amount within that range. At the two Jammie Thomas-Rasset trials, the labels did not ask for a specific amount; at the first trial the jury awarded $9,250 per work, and $80,000 at the second.

What is the plaintiffs' evidence?
According to plaintiffs:
On August 10, 2004, at 12:49 a.m. EDT, MediaSentry, a company retained by Plaintiffs, detected an individual with the username “sublimeguy14@KaZaA” at Internet Protocol (“IP”) address using the KaZaA online file sharing program to distribute Plaintiffs’ copyrighted sound recordings.... This person was distributing 816 digital audio files from a “shared” folder on his computer to millions of other users on the KaZaA network.
MediaSentry recorded this information and downloaded certain of the songs. Cox Communications, the ISP associated with this IP address, has stated that the address was assigned to "J. Tenenbaum" on the date in question. A later search of Tenenbaum's computer confirmed his use of KaZaA and other p2p software through 2007, and possibly 2008. This will all be explained by a representative from MediaSentry and their expert, Dr. Doug Jacobson of Iowa State University. Here's the plaintiffs' Pretrial Memorandum, which summarizes their evidence and arguments.

What is Tenenbaum's defense?
Tenenbaum repeatedly admitted under oath at his depositions that he used KaZaA to download and share songs. While there may be some dispute about what exactly he admitted to (he has said he doesn't remember all of the details), it's clear that his defense is not "I didn't do it." Tenenbaum's primary legal defense is fair use. Fair use is an affirmative defense to an allegation of copyright infringement, just as self-defense is an affirmative defense to a charge of murder; the defendant essentially says, "Yes, I did it, but I was justified in doing so." On the eve of trial, it is still not known whether the jury will be permitted to consider Tenenbaum's fair use defense. The record labels have moved for partial summary judgment on his fair use defense, but, as of the night before trial, she has yet to rule. Two appellate courts have considered fair use defense in the p2p context; both rejected it. See A&M Records v. Napster and BMG Music v. Gonzalez. [UPDATE: the court granted the plaintiffs' motion for summary judgment on the fair use defense at 1:37 a.m. on the day of trial. Fair use is out of the case.]

The other primary argument Tenenbaum has made is that his actions did not cause significant (if any) harm to the plaintiffs. I expect his defense to press this issue at trial (though an award of statutory damages does not require a showing of actual harm), and, if there is a verdict and an award of damages, Tenenbaum will argue that the damages are unconstitutionally excessive.

How long will the trial last?
Judge Gertner has told the attorneys that she intends for the trial to be wrapped up by this Friday, July 31.

Where can I read the various documents in the case?
Most (but not all) are here or here. All are available -- for a fee of $.08 per page -- through PACER.

What's your prediction? Who will win?
Based on the facts and the law, and the weaknesses in Tenenbaum's defense, I think it's most likely that the plaintiffs will win. However, this is a jury trial, and juries are unpredictable. It is not inconceivable that the jury will be sympathetic toward Tenenbaum, whom the defense will portray as a victim of large companies' abusive litigation strategy. It's also clear that Judge Gertner is not inclined toward the plaintiffs, so it will bear watching whether she signals her views to the jury.

How is this case different from the Jammie Thomas-Rasset case?
Jammie Thomas-Rasset is a Minnesota woman who stood trial in June on similar allegations (actually for the second time). The jury found for the plaintiffs and awarded $80,000 per song, for a total of $1.92 million. Thomas-Rasset steadfastly denied ever downloading or sharing songs over the Internet. Her defense was simple: "I didn't do it." (At trial, she suggested that her ex-boyfriend or kids may have been the actual culprits.) In contrast, Tenenbaum does not deny using KaZaA to obtain songs; rather, he says he was justified in doing so, and that his actions did not harm the plaintiffs. Tenenbaum's admissions may render the plaintiffs' forensic computer evidence from MediaSentry and their expert Dr. Jacobson somewhat less important, again because there is no real dispute whether Tenenbaum downloaded and "shared" the songs at issue. I therefore expect this trial to focus more on the issue of harm.


  1. I have some other questions.

    What are the chances that this will end here?

    Is there *any* outcome that won't be described as a PR nightmare for the labels?

    Since the legal campaign against individuals is being dropped, was there really a need to proceed with this?


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