But Team Tenenbaum's professed surprise about the 30 songs rests on a falsehood. The labels have never said they were suing on only seven songs. Indeed, from the very beginning, they have said the case is about many more songs than that. Here are the facts:Joel being pursued for $4.5 million
We thought it was 7 songs.
An email from Joel
They showed the list very matter of factly at my deposition. Nesson says
something like “…7 songs…” They say, “Actually, we’re up to 30.”
Nesson replies, “Since when?”Eve’s verbatim reply: “You should read the documents we’ve been filing.”
Their contention is that they’re pursuing liability for 30 songs in a schedule they disclosed to us in October of 2008; they did so without amending pleadings.
In their complaint, filed August 7, 2007, the labels defined the term "Copyrighted Recordings." According to Paragraph 11 of the complaint:
The Copyrighted Recordings include but are not limited to each of the copyrighted song recordings identified in Exhibit A attached hereto.... In addition to the sound recordings listed on Exhibit A, Copyrighted Recordings also include certain of the sound recordings listed on Exhibit B....Exhibit A lists seven songs. Exhibit B (here, here, here, here, here, here, and here) lists more than 800 additional songs. (Fewer than all of the Exhibit B songs, which represent the songs MediaSentry found in Tenenbaum's Kazaa shared folder, are included in the definition of Copyrighted Recordings, because not all are owned by the plaintiffs.) The complaint makes crystal clear that the plaintiffs claim infringement and are seeking damages on the Copyrighted Recordings -- not just the seven songs listed in Exhibit A. See Complaint Paragraphs 12, 16 ("As a result of Defendant's infringement of Plaintiffs' copyrights and exclusive rights under copyright, Plaintiffs are entitled to statutory damages...for Defendant's infringement of each of the Copyrighted Recordings." (my emphasis).
The notion that plaintiffs were suing or seeking damages on just seven songs is nothing more than Team Tenenbaum's invention. They have repeatedly use this made-up "fact" for their propaganda purposes, creating a myth that Joel's only possible transgression was to perform "seven clicks." But the labels have made clear, including in court papers, that this case is about much more than seven songs. For example, from a March 23, 2009 brief:
Plaintiffs sued Defendant based on substantial evidence that Defendant used the KaZaA file sharing program to upload (distribute) more than 800 sound recordings—including many of Plaintiffs’ copyrighted sound recordings—to potentially millions of other users on the file sharing network. Plaintiffs also allege that Defendant used KaZaA to download Plaintiffs’ copyrighted sound recordings from other KaZaA users.(emphasis added).
Contrary to the suggestion in the defense team's blog post today, I know of no reason why the plaintiffs would have had to amend their pleadings given their decision to pursue damages on 30 songs at trial, given that those songs were already identified in the exhibits to the original complaint (and apparently referenced in an Oct. 2008 "schedule," to which I don't have access). If the defense was proceeding under the false assumption that the case was just about "seven songs," it is only because they came to believe the myth that they themselves invented.
UPDATE: See my later post, which includes much more detail about what the defense knew about the 30 songs, and when they knew it.
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That's funny, because in "Pravda of Yesteryear", I could swear you call the "millions in damages" claim false based on using 7 songs, which you've never called out before. So it's 7 when talking damage cap, but "over 800" otherwise.
ReplyDelete@Anonymous:
ReplyDeleteWhat I actually wrote was: "Even by Tenenbaum's own propaganda (which itself ignores most of the relevant facts), the maximum possible award of statutory damages is about $1 million -- not 'millions.'" In other words, if you accept Tenenbaum's "7 songs" premise, then it can't be "millions." But as I also wrote in that post (and in other posts), the "7 songs" claim was false. http://copyrightsandcampaigns.blogspot.com/2009/06/russia-today-pravda-of-yesteryear.html
I have indeed previously "called out" the fact that the plaintiffs were not suing on just 7 songs. I did so in the very "Pravda" post you mention. And also here: http://copyrightsandcampaigns.blogspot.com/2009/05/fisking-charlie-nesson-what-about-joel.html
"Tenenbaum is not being sued for "sharing seven songs." Rather, as the record label plaintiffs have said:
Plaintiffs sued Defendant based on substantial evidence that Defendant used the KaZaA file sharing program to upload (distribute) more than 800 sound recordings—including many of Plaintiffs’ copyrighted sound recordings—to potentially millions of other users on the file sharing network. Plaintiffs also allege that Defendant used KaZaA to download Plaintiffs’ copyrighted sound recordings from other KaZaA users.
(emphasis added); see also Complaint at Par. 11 (referring to hundreds of additional "Copyrighted Recordings" listed in Exhibit B). Plaintiffs have not indicated the number of songs on which they intend to seek damages at trial (or in a motion for summary judgment)."
Funny you never mentioned that you could include far more than the 7 songs to easily arrive at the "millions" claim. Then the claim wouldn't be Russian propaganda...
ReplyDeleteHere's exactly what I said in the "Pravda" post:
ReplyDelete"And it is not certain how many songs on which the labels will seek damages among the approximately 800 he had in his shared folder."
The point of the post was to show what a terrible job the reporter did. The point I was making about "millions" was that the damages couldn't be "millions" if the premise (which I explicitly said was false) was that the case was only about "7 songs." Obviously, with some combination of the number of songs and a per-song award by the jury, the total could reach into the millions.
Ben, moving away from dealing with the troll, and on to a related subject, Nesson better not argue to the jury that the labels are seeking $4.5 million, because that is exactly what got Jammie Thomas into a $1.92 million verdict. If he goes in there like Camara and says Plaintiffs want $4.5 million at all and plaintiffs come back and say, not at all, we're just asking for whatever the jury deems reasonable, Tenenbaum will suffer the same fate of having the plaintiff look reasonable and the sky high number being put in the jury's mind by defendant, so that they just work down a little from there.
ReplyDeleteObviously it's all about notice pleading in federal court. But suing over 7 songs and 800 is pretty different. Was Tenenbaum supposed to research the copyright holder of every one of the 800 to figure his total possible liability? Presumably one's defense and settlement strategy depends on what the possible liability is. One would think the labels should have notified him earlier the specific songs they claimed ownership of, if for no other reason to allow proper discovery re chain of ownership etc for copyrights.
ReplyDelete@Anonymous 5:58:
ReplyDeleteI agree with you that it wouldn't seem fair if the labels implied all along that they were going to sue over some huge number, forcing JT to do a ton of work, and only at the last minute said, "Never mind, we're only going after 30" (especially if that was their intention all along). But according to the defense team's own blog post, the 30 were listed on a "schedule" that they were given in Oct. 2008. I haven't seen the "schedule" and don't know exactly what it says, but if it listed the 30 specific songs, then I don't think the defense has much to complain about.
And I think the bottom line is that if JT has to defend against claims on a large number of songs, that's mainly his fault, for having such a large number of songs in his shared folder.
Anonymous 5:58 said:
ReplyDelete"Presumably one's defense and settlement strategy depends on what the possible liability is."
Are you saying that Tenenbaum would reject a $3,000-$5,000 settlement offer if he thought his liability could be $1.05 million, but not $4.5 million?
In any case, it seems to me that if you took 800 songs and that is stated in the Complaint, you should calculate the expected value of damages on 800, and be happy if it is less than that.