Sunday, July 12, 2009

Labels submit rebuttal expert report; economist Liebowitz argues file-sharing harms markets

Via defense counsel Charles Nesson's Twitter feed comes word that the record label plaintiffs in the Joel Tenenbaum case have submitted a rebuttal expert report from University of Texas at Dallas economist Stanley Liebowitz. Liebowitz's report responds to the reports of defense experts John Palfrey and Johan Pouwelse, and argues that the use of p2p networks to "share" files "has caused considerable harm to the market for sound recordings, whether in the form of CDs or in the form of digital downloads." (The report was timely served on July 10, pursuant to the court's June 16 order. See page 3.)

Stanley Liebowitz Rebuttal Expert Report in Sony v. Tenenbaum


  1. Why didn't Charlie use Oberholzer & Strumpf or Andersen & Frenz ?

  2. Oberholzer & Strumpf vs. Liebowitz would have been interesting. See here:

  3. The Supreme Court, in Harper & Row, said that all that is necessary to negate fair use is a showing that "if the challenged use 'should become widespread, it would adversely affect the potential market for the copyrighted work.'" This rebuttal expert, along with basic common sense, seems to be more than sufficient to establish the point that unfettered access to free, perfect copies that completely supplant the need for a paid original would have a negative impact on the market, actual, potential or otherwise, for any product.

  4. While I agree that a finding of fair use in this case would be an expansion on existing doctrine, I find Mr. Liebowitz's arguments about harm to the market to be very unpursuasive. In my view (from reading his articles and less formal comentary), he tends to dismiss studies that have found the contrary result without adequate explanation. Furthemore, he creates arbitrary distinctions between "good" and "bad" market destruction, and continues to compare IP rights to classical property. All of which are problematic in modern economic discource. That is not to say that he may not be correct. It is just that he has not presented any convinving arguments that he is.


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