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.