Tuesday, July 28, 2009

Tenenbaum P2P trial features prophetic warnings of doom

Here's my take on the second day of the Joel Tenenbaum trial, cross-posted from Ars Technica:

True to his word, Harvard Law's Charles Nesson brought both Styrofoam and a "Necker Cube" diagram to court for his opening statement this morning, but the real drama was just beginning. The second day of the Joel Tenenbaum file-sharing trial featured Tenenbaum's own father taking the stand, recounting how he had warned his son about P2P use as far back as 2002.


Joel Tenenbaum downloaded and distributed thousands of songs without paying for them, and continued to do so for years after he was sued by the major record labels for this very activity, charged Tim Reynolds, the record labels’ lead attorney, as the trial of the 25-year old physics grad student got underway in earnest today in a Boston federal courtroom.

"We are here to ask you to hold the defendant responsible for his actions," said Reynolds, a partner in the Boulder, Colorado office of Holme, Robert & Owen. "Filesharing isn't like sharing that we teach our children. This isn't sharing with your friends."

But, countered his attorney, Harvard Law School professor Charles Nesson, Tenenbaum was no different from countless others in his generation who turned to the Internet for free music when Napster made it possible back in 1999. Nesson made no effort to deny that Tenenbaum had engaged in the activity of which he stands charged as the second file-sharing defendant ever to face trial: downloading and distributing 30 songs whose copyrights are owned by the four major record labels.

"Everyone could download [songs] for free. And millions and millions did. Joel was one of those millions," he told the five men and five women of the jury, the youngest of whom appears to be about 30. "In his way he's like every other kid. There's nothing that distinctive about Joel."

Nesson’s opening statement veered at times from “statement” (permissible) into "argument" (verboten), though it was always intriguing. Nesson crumbled a Styrofoam box into hundreds of bits to illustrate albums breaking into individual songs, then displayed a poster of the now-famous "Necker Cube" optical illusion, asking the jury to consider the case from two varying perspectives.

"The truth can very typically be seen from two different points of view," said Nesson.

Tenenbaum’s hopes of letting the jury determine whether his acts of infringement constituted fair use under the Copyright Act were dashed by a last-minute order from Judge Gertner, granting the plaintiffs' motion for partial summary judgment on the fair use defense. Her order, e-mailed to the parties at 1:37am on the morning of trial, said the fair use defense proposed by Tenenbaum would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

Opening statements

Reynolds walked methodically through the evidence that, he says, proves Tenenbaum downloaded and shared the 30 songs on which the labels are seeking damages that could potentially reach $150,000 per work. Investigative firm MediaSentry detected KaZaA user "sublimeguy14@KaZaA" at the IP address sharing 816 files at 12:49am on August 10, 2004. The ISP Cox Communications revealed through subpoena that was assigned to a "J. Tenenbaum" in Providence, Rhode Island. And forensic examination of Tenenbaum's hard drive provided additional evidence that Tenenbaum used KaZaA and other peer-to-peer programs for years, even after he was served with the complaint in August 2007, said Reynolds.

But, he noted, the record labels hardly need all the forensics from MediaSentry and from Cox and from their expert, Iowa State University computer scientist Doug Jacobson, because they have something potentially better, and likely much more understandable to the jurors: Tenenbaum's own admissions at his two days of deposition that he used KaZaA to obtain music. Plaintiffs plan to call Tenenbaum to the stand, possibly as early as tomorrow.

Tenenbaum "tried to blame others for his conduct but continued to infringe long after he was caught, and even during the course of this lawsuit," said Reynolds, also the lead attorney in the recording industry’s $1.92 million victory over Jammie Thomas-Rasset in Minnesota last month. "He didn't take responsibility," and initially tried to pin blame on his friends, his sisters, a foster child living with his family, and even a "burglar."

And Tenenbaum's actions caused real harm, contended Reynolds. "The exact amount of harm is incapable of exact proof. But make no mistake about it: defendant's activities caused significant harm." Illegal downloading and distribution caused "significant lost sales, and reduced the labels’ ability to develop new artists," he said, emphasizing the impact on less-monied players in the music industry, including studio engineers and backup musicians.

Nesson's opening statement told a completely different story, of a digital generation that embraced peer-to-peer networks when they arrived on the scene and shouldn't be punished for sticking with them even as iTunes and numerous other legal, paid alternatives became available. "They listen to music with the technology available, and enjoy it with the technology available," he said of the "digital natives" studied by John Palfrey, the Harvard Law School professor whose proposed expert testimony Judge Gertner excluded as irrelevant.

And Tenenbaum doesn't bear responsibility for the music industry's problems of the past decade. “The Internet was not Joel’s fault. Joel did not make the Internet,” said Nesson. Referencing the sudden availability of "free bits" on the Internet, he said, "If you’re in the desert and it starts to rain, you need a new business."

First witnesses

The first witness called by the plaintiffs was Sony Music Entertainment Deputy General Counsel Wade Leak, who educated the jury on the basic functions of a record label, from A&R to connecting artists with producers to radio promotion to physical and digital sales. Leak also served as the vehicle for introduction of the copyright registrations of Sony's works, and identified the song "Pardon Me" by Incubus, which was played to the courtroom with no apparent reaction from the jury or Judge Gertner, whose musical tastes remain a mystery.

Leak also testified as to the harm allegedly caused by peer-to-peer use to his company, stating that the number of Sony Music employees has dropped by half since 2000, a body count he attributed in large part to piracy. (Plaintiffs plan to bolster their evidence of economic harm with testimony from University of Texas economist Stanley Liebowitz, an expert on the economic effects of copyright infringement. Tenenbaum has no economic expert, and Judge Gertner has barred his computer expert Dr. Johan Pouwelse from opining on economic and business issues.)

Nesson’s cross-examination of Leak was lengthy, and interrupted by frequent objections by plaintiffs' attorney Matthew Oppenheim, most of which were sustained. Indeed, on several occasions "sustained" escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, "I'm just trying to translate this into the Federal Rules of Evidence." And when Nesson, reacting to a sustained objection, explained what he was trying to "say," Gertner cut him off: "You're not supposed to be saying anything. You're supposed to be asking questions."

On substance, Nesson tried to get Leak to admit that Tenenbaum did not fit into the category of the worst of copyright infringers: he was not a criminal infringer and not a member of a "release group" who originally seeded the KaZaA network with unauthorized copies of songs. Instead, Tenenbaum was just "one more…bit of dust in the wind" whose KaZaA use had no significant effect on the availability of the songs at issue.

Nesson also tried, without success, to get Leak to say how much the plaintiffs were seeking in damages from Tenenbaum. "We are leaving that determination for the jury's discretion," said Leak, who testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate.

Mark Matteo of Cox Communications' security department testified about the process of linking the IP address identified by MediaSentry with the account held by "J. Tenenbaum" of Providence, RI. Nesson’s cross reminded the jury that the first initial "J" belongs to Judith Tenenbaum as well as Joel.

MediaSentry's staccato-talking anti-piracy cop Chris Connelly took the stand to describe how the company's automated software detected "sublimeguy14@KaZaA” at the IP address sharing 816 files at 12:49am on August 10, 2004. The New Jerseyan confidently defended his company's accuracy: “There has been a zero error rate.”

But he acknowledged that MediaSentry cannot detect transfers from one peer to another, and thus does not have direct proof that distributed files to any specific KaZaA users other than to MediaSentry itself, which downloaded five complete files from sublimeguy14@KaZaA for purposes of this litigation.

Plaintiffs briefly called to the stand Joel's high school friend James Chappel, whom Tenenbaum had previously identified as someone who had used his computer, possibly to download music. Chappel testified that he had used the computer in Joel's bedroom several times, but never to download music on KaZaA or otherwise.

Joel's father, psychiatrist Dr. Arthur Tenenbaum, was the last live witness of the day. He confirmed his son's musical tastes (they once listened together to the Fugees' "Killing me Softly," one of the 30 songs at issue in this case) and testified as to the computers at use in the family home. He recounted Joel demonstrating KaZaA for him at the bedroom computer. And, perhaps most damning, he testified that he called his son at college in 2002 to warn—quite prophetically—that Joel might get sued because of his p2p use. "You only get sued if you do it a lot," Joel responded.

The day concluded with a law firm associate reading deposition testimony from Joel's two sisters, Tova and Abigail. Joel testified during his deposition that both might have used KaZaA on the computer in his bedroom, but in their own subsequent depositions, both denied it.

Tomorrow will feature more denials from friends and acquaintances who Joel had suggested may have used his computer to download music. Other scheduled witnesses include label attorneys JoAn Cho of Universal and Silda Palerm of Warner, plaintiffs' computer forensics evidence Dr. Douglas Jacobson, and Joel Tenenbaum himself. Plaintiffs have indicated they hope to wrap up their case sometime Thursday morning, which will leave the defense little time for its own presentation if the jury is to receive the case by Friday, as per the schedule set by Judge Gertner.


  1. Though I'm utterly without legal training, I'd invite you to look at my takes on the trial at viewsfrommontparnasse.blogspot.com. Our opinions differ, but I am very appreciative of your thorough coverage.

  2. As a software quality engineer, I'm immediately skeptical of anyone in the software industry who claims a zero error rate. It's not impossible under tightly defined circumstances, but in this case one must ask how would they know? Without independent verification, they would be relying on their own software and processes to prove that their own software and processes are infalliable.

    Though one wonders why, if Tenenbaum admitted in his depositions that he's downloaded songs, they need to spend the court's time on this.

  3. Anon: The fact that software engineers do their jobs badly does not mean that other people do the same.

  4. Halojones-fan: That's not the issue. The issue is that the witness made a technical assertion that is absolutely unprovable unless the context out of which it was taken was very, very narrow.

  5. "The issue is that the witness made a technical assertion that is absolutely unprovable..."

    ...actually, it's entirely provable--look at their record, identify errors, if there are no errors then there's a zero error rate.

  6. That would be circular reasoning. It's similar to look at a large collection of court reporters' typed transcripts and saying "we don't know of any errors, therefore there are none." To prove a zero error rate, you'd expect them to compare against independently derived data, or use other rigorous methods. Unrealistic, but that's why the statement was inappropriate.

    Another blog cites Dr. Jacobson's testimony, with regard to this statement, as saying that he's never found any errors but that a zero error rate is "hard for software to achieve". Clearly Dr. Jacobson understands the distinction.

    For the purposes of this trial, it's a nit. Saying that "we've never found an error, and don't know of any" is more than adequate, and undoubtedly what MediaSentry intended. But by phrasing the assertion this way, it suggests that they don't have a rigorous approach to software quality. Typical for companies in their situation, but whether it's a legal vulnerability for future cases is outside my expertise. (If it's not obvious, I earn money by helping small companies establish good SQA practices.)

  7. @Anon: " To prove a zero error rate, you'd expect them to compare against independently derived data, or use other rigorous methods."

    So...uh...LOOKING FOR ERRORS is not a rigorous method? They're making factual assertions--"thus-and-so IP was sharing files over the Internet". It's not really a question of analysis or viewpoint, unless you're suggesting that MediaSentry somehow misidentified the IP address of every packet it received.

  8. Of course "looking for errors" isn't a rigorous method, but this isn't the place for a course on software testing methodologies.

    Nor am I suggesting that they misidentified the IP addresses, or that any of the other data presented contained errors. I'm saying that nothing I've seen in the reporting of the trial addresses their reliability more than superficially, and that the MediaSentry expert's choice of phrasing is phrasing that I would not expect to see if high quality processes were in place.


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.