Thursday, July 30, 2009

Tenenbaum takes the stand: I used P2P and lied about it

Here's my recap of day four of the Joel Tenenbaum trial, cross-posted from Ars Technica:

Accused of sharing 30 songs on the Internet, Joel Tenenbaum today admitted his liability in a federal courtroom, then told the court he told a "lie" in his earlier sworn responses. The labels have moved for a directed verdict of copyright infringement, and look likely to get it.


“Joel Fights Back,” proclaims the website for Joel Tenenbaum, the Boston University grad student standing trial for copyright infringement this week in a federal courtroom. But today, when he took the stand at his closely watched copyright trial, he didn’t.

Instead, over and over, Tenenbaum admitted under oath that he used KaZaA, LimeWire, and other peer-to-peer software to download and distribute music to others unknown.

“This is me. I’m here to answer,” said Tenenbaum. “I used the computer. I uploaded and downloaded music. This is how it is. I did it,” he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.

“Are you admitting liability for all 30 sound recordings” on which the record labels brought suit, asked the plaintiffs’ attorney Tim Reynolds.

“Yes,” said Tenenbaum.

Tenenbaum then admitted that he “lied” in his written discovery responses, the ones in which he denied responsibility.

“Why did you lie at that point?” asked Tenenbaum’s attorney, Harvard Law School professor Charles Nesson. “It was kind of something I rushed through,” responded Tenenbaum. “It’s what seemed the best response to give.” At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.

A directed verdict?

Given Tenenbaum’s clear-cut admissions, plus the other evidence linking the defendant to the alleged infringement, plaintiffs moved at the end of their presentation for a directed verdict in their favor under Federal Rule of Civil Procedure 50 on the issues of copyright ownership, liability, and willfulness. Judge Nancy Gertner gave every indication that she will grant the motion as to ownership and liability, taking away from the jury the basic issue of whether Tenenbaum infringed the plaintiffs’ copyrights.

“For all intents and purposes, the ownership and liability issues have been conceded,” she said, suggesting wilfullness was a closer call. Judge Gertner promised a ruling on all three issues Friday morning. UPDATE: Tonight Judge Gertner, "out of an abundance of caution," denied the plaintiffs' motion for a directed verdict on the issues of liability and wilfullness, leaving them to be decided by the jury. She did grant their motion as to copyright ownership, which Tenenbaum never disputed.

During Tenenbaum’s testimony, plaintiffs’ attorney Tim Reynolds walked Tenenbaum methodically through the evidence, extracting scores of one, two, and three-word admissions that he did exactly what plaintiffs have accused him of doing.

“You used KaZaA to download music, right?”

“You used LimeWire to get music without paying for it, right?”

“Your goal was to obtain the maximum amount of music with the minimum amount of wasted effort, right?”

“Yes.” “I did.” “Yes, I did,” Tenenbaum said calmly, over and over and over, in response to Reynolds’ questions.

Tenenbaum admitted that the screenshots captured by MediaSentry in August 2004, showing over 800 song files in his KaZaA shared folder, were accurate representations of the contents of that folder.

He admitted that he listened to his copies of all 30 songs he is accused of downloading and distributing—negating Nesson's suggestion that some of them were actually fake files, “spoofs” put on peer-to-peer networks by copyright owners to frustrate users trying to obtain music for free.

And Tenenbaum accepted all of the conclusions of plaintiffs’ computer forensics expert, Dr. Douglas Jacobson, as true. “I trust he’s a competent professional,” said Tenenbaum.

Under cross-examination by his own attorney, Tenenbaum was more expansive. He recounted his long-time love of music and growing up in a family where all members played an instrument. “They forced us to play piano,” he said of his parents.

And Tenenbaum insisted he never had any intent to harm the record labels, and certainly not the artists themselves, for whom he expressed great affection.

Tenenbaum smiled broadly as he recounted the joy of first encountering Napster: “It was great… It was like this giant library in front of you with all sorts of songs... It’s all up there... It’s like the Google of music... You have this list of songs, and you can get them really easily.”

Did he consider whether it was legal? “I guess it wasn’t foremost in my mind... Now I’m thinking a lot more about whether it’s illegal," he replied.

Plaintiffs wrap things up

After Tenenbaum left the stand in the early afternoon, plaintiffs called Ron Wilcox, an attorney and long-time digital music executive now at Warner Music Group, who guided the jurors through the industry’s efforts to sell music on the Internet, from the early days of MusicNet and Pressplay, through iTunes, and to what he sees as an all-digital future.

“Our total focus and attention is on” digital distribution, said Wilcox, who was called to counter the defense’s suggestion that Tenenbaum’s use of peer-to-peer was justified by the labels’ alleged failure to provide legal alternatives. “There’s no fear of technology,” said Wilcox, who spent 25 years at Sony Music before joining Warner early this year. But the digital marketers are “always in a position of chasing free.”

Rounding out the day was Warner Music attorney Silda Palerm, who spent less than ten minutes on the stand confirming WMG’s ownership of such songs as Green Day’s “Minority,” which was found in Tenenbaum’s KaZaA shared folder.

With that, plaintiffs rested their case.

Defendants have said they intend to call to the stand Tenenbaum’s mother and Dutch computer scientist Johan Pouwelse. But it is unclear what purpose either of these witnesses would serve, given the concessions made by the defense today. In any event, Tenenbaum’s attorneys said they would finish their presentation by mid-morning Friday. Then, following closing arguments and jury instructions, the five men and five women of the jury will be sent off to deliberate.

The only tough issue left for the jury to decide will be damages, which could range from $750 per work up to $30,000 per work, or up to $150,000 per work if they find that Tenenbaum’s infringement was willful. In yet another blow to the defense, Judge Gertner said she will instruct the jury that “willful infringement is that committed with knowledge of or ‘reckless disregard’ for the plaintiffs' copyrights,” rejecting a heightened standard urged by Tenenbaum that would have required a showing of Tenenbaum’s intent to profit commercially.


  1. Throwing his own mother under the train might actually be worse than Thomas selling out her own kids. An admission under oath that she counseled him to falsify his declarations most certainly would open her up to possible disciplinary procedures, wouldn't it?

    Mass. follows the Model Rules, and 8.4(a) makes it professional misconduct to, inter alia, "knowingly assist or induce another to" "violate ... the Rules of Professional Conduct." Her assistance in counseling the defendant to make false statements would seem to run afoul of the prohibition of making false statements to a tribunal in 3.3.

  2. Well, there you have it. The truth about motives of p2p'ers. Was it what we've been hearing for the past 10 years; the labels didn't adapt fast enough to the new digital world? No. The RIAA are greedy pigs? No. Major label music sucks? Not that either
    From the mouth of Joel....
    “It was great… It was like this giant library in front of you with all sorts of songs... It’s all up there... It’s like the Google of music... You have this list of songs, and you can get them really easily.”

    I'll await the guilty verdict and significant damages. Hope Nesson will now reserve his brilliance for the classroom.

  3. Also, didn't he just admit that he lied in a court proceeding? Isn't that perjury? I guess it's a question of whether or not he was under oath at the time.


    Although once Judge Gertner shot down the Fair Use defense, he really didn't have anything left. His whole plan was to bamboozle the jury with meta-arguments about whether or not the law was valid (along with a lot of trash-talking the music industry to get sympathy points.)

  4. To Anonymous at July 30, 2009 5:23 PM:

    How about making the punishment fit the crime? So he downloaded ~30 songs at 99 cents each. That comes to about $29.70 total lost to the "wonderful" record labels. So make him pay about 10 times that and let it go. Or we could ruin someone financially for life like they did Jammie Thomas. How would you feel if this was you? I mean there is making an example out of someone and then there is being greedy, vindictive and spiteful like they are trying to do here and like they did with Jammie Thomas.

    I do hope to $DIETY, that the jury has a modicrum of common sense and doesn't hand down the kind of lifelong punishment that will hound this kid for the rest of his life.

    All over ~30 dollars of song files. Yeah, maybe he lied during his earlier deposition, but is that still any reason to ruin someone financially for the next 40 - 50 years of their life?

    Sheesh, what a way to go through life. I bet you're the kind of person that would sue over a papercut or something similiarly small and overall inconsequential.

    I feel sorry for you Anonymous, you must have a pretty sad outlook on life.

  5. 7:45 Anonymous - I think you've missed most of the reporting on this case. If you have been paying attention, you'd know that the RIAA made multiple settlement offers that should have been pretty reasonable for Tenenbaum to accept.

    In this case, the defense is the side that has chosen to ratchet up the stakes and be "vindictive."

  6. To anon 7:45
    "Or we could ruin someone financially for life like they did Jammie Thomas. How would you feel if this was you? I mean there is making an example out of someone and then there is being greedy, vindictive and spiteful."

    Having been a songwriter my entire life---not an artist or major label whom your ilk seems to love to vilify, I know exactly how I'd feel if this was me. I've seen at least half of my friends and co-workers in the musical food chain "made an example of" and driven out of business by p2p. There is a astounding degree of vindictiveness and spitefulness towards anyone who actually does this for a living and tries to protect their creations. Hate it for Joel, but there were over 800 songs in his folder. He could have settled for about 5 bux a song. Instead he threw in with geniuses like Nesson who wanted to make this a referendum on who knows what, his sweater? He's getting nailed by his own hubris.


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