Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns
Wednesday, August 5, 2009
Tenenbaum re-writes history: RIAA now not such 'rotten bastards'; 'lies' no longer a 'myth'
In a Q & A posted August 2, the Sunday after last Friday's verdict, Joel Tenenbaum had this to say about his victorious opponents:
Q: The RIAA are a bunch of rotten bastards. A: I know.
Today, where that couplet once appeared, we now have this: Also on August 2, Tenenbaum published a post purporting to correct various "myths" in the media coverage of his case. Among the alleged "myths" was that Tenenbaum "lied" in his written discovery responses and at his first deposition. This, despite the fact that the following exchange occurred while Tenenbaum was on the witness stand at trial, under oath:
Nesson: Why did you lie at that point?
Tenenbaum: It was kind of something I rushed through.
Well, today, that Tenenbaum lied is no longer a "myth," but merely a statement meriting a "clarification":
Ben, background for you. I was getting inundated on facebook with questions about the trial so I posted an FAQ. The "rotten bastards" was meant as a joke, because it was a frequently asked "question" I'd been getting.
I'm sure the RIAA and its lawyers have similarly colorful language to describe Mr. Tenenbaum.
But they've bitten their tongues. Nice to see that one side has acted with class.
Shame on the law students (who seem to be running this website)and Mr. Nesson for engaging in such behavior.
Do you think Mr. Tenenbaum realizes that he has demonstrated what a spoiled rotten brat he is and how horribly he has acted, and continues to act? That he simply doesn't think any rules apply to him and can do whatever he chooses, without consequence? For anyone who might have felt sorry for him, thanks for clarifying that this is a bed he and his legal team made and deserve to be lying in.
If I'm not mistaken, the RIAA hasn't been a party to any of these cases, right? If I'm not mistaken, the only one that they were actually party to was the Rio case. I know it's easier to insult a trade association than it is all the labels that are party to these lawsuits, but what happens is that even the venerated CNN speaks of payments to four labels like the only plaintiffs are the majors.
@Randy: If Tenenbaum had "minimalist" but truthful, there would have been no problem. But his own counsel said that Tenenbaum "lie[d]." There's no dispute that he did.
@Chris: You are basically right, with a few minor exceptions. The plaintiffs in these cases have been the actual copyright owners: the record labels.
Tenenbaum did try to add the RIAA as a counterclaim defendant, but the court ruled that his claims (for abuse of process and related torts) failed as a matter of law. Also, there have been a small number of cases where the labels won judgments, and then assigned their claims to the RIAA for collection purposes.
Of course it's not "my" victory, and I've never suggested otherwise. I've merely been highlighting what I think is the inexplicable and self-destructive actions of Tenenbaum post-verdict. I think a little contrition would go a long way in convincing Judge Gertner that he has already learned his lesson, and does not need a huge judgment to deter him from future bad acts. Instead, he has been defiant and unrepentant. I think that attitude could cost him dearly.
Were I advising Tenenbaum (and I'm obviously not), I'd tell him to be contrite, or be quiet. He's done neither.
What is Joel's exposure to attorney's fees for the plaintiffs, given that everything was registered and that there was a finding of willful" infringement? Is this in Judge Gertner's discretion? Does the RIAA have to ask? Have they?
Yes, Tenenbaum is potentially liable for attorneys' fees, which I would guess are at least several hundred thousand dollars. The plaintiffs have not yet filed a motion for attorneys' fees. Right after the verdict, there was a brief discussion between plaintiffs' counsel and the judge about when such a motion would be due, which indicates that the plaintiffs are at least considering filing such a motion.
Here's the relevant section of the Copyright Act:
§ 505. Remedies for infringement: Costs and attorney's fees
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
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.
Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.
Ben Sheffner is a copyright and anti-piracy attorney in Los Angeles. He has previously held positions in-house at NBCUniversal and Fox, as an associate at O'Melveny & Myers LLP, and as Special Counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other IP issues. A former Co-Chair of the Media Law Resource Center's California Chapter, Ben served as a law clerk to Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit from 2000-2001.
Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.
This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.
Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.
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Also on August 2, Tenenbaum published a post purporting to correct various "myths" in the media coverage of his case. Among the alleged "myths" was that Tenenbaum "lied" in his written discovery responses and at his first deposition. This, despite the fact that the following exchange occurred while Tenenbaum was on the witness stand at trial, under oath:
And so we asymptotically approach the truth...
Posts
Ben, background for you. I was getting inundated on facebook with questions about the trial so I posted an FAQ. The "rotten bastards" was meant as a joke, because it was a frequently asked "question" I'd been getting.
ReplyDeleteBen,
ReplyDeleteYou *are* a lawyer aren't you? It seems to me that you might relate to Joel's statement of "I was trying to be as minimalist as possible."
I don't know if he had representation at that time or not.
Just sayin,
Randy
I'm sure the RIAA and its lawyers have similarly colorful language to describe Mr. Tenenbaum.
ReplyDeleteBut they've bitten their tongues. Nice to see that one side has acted with class.
Shame on the law students (who seem to be running this website)and Mr. Nesson for engaging in such behavior.
Do you think Mr. Tenenbaum realizes that he has demonstrated what a spoiled rotten brat he is and how horribly he has acted, and continues to act? That he simply doesn't think any rules apply to him and can do whatever he chooses, without consequence? For anyone who might have felt sorry for him, thanks for clarifying that this is a bed he and his legal team made and deserve to be lying in.
If I'm not mistaken, the RIAA hasn't been a party to any of these cases, right? If I'm not mistaken, the only one that they were actually party to was the Rio case. I know it's easier to insult a trade association than it is all the labels that are party to these lawsuits, but what happens is that even the venerated CNN speaks of payments to four labels like the only plaintiffs are the majors.
ReplyDeleteWhy don't they use "additur" as a CAPTCHA word?
Ben:
ReplyDeleteBe gracious in victory - which isn't your victory anyway.
@Randy: If Tenenbaum had "minimalist" but truthful, there would have been no problem. But his own counsel said that Tenenbaum "lie[d]." There's no dispute that he did.
ReplyDelete@Chris: You are basically right, with a few minor exceptions. The plaintiffs in these cases have been the actual copyright owners: the record labels.
ReplyDeleteTenenbaum did try to add the RIAA as a counterclaim defendant, but the court ruled that his claims (for abuse of process and related torts) failed as a matter of law. Also, there have been a small number of cases where the labels won judgments, and then assigned their claims to the RIAA for collection purposes.
@Anonymous 4:13:
ReplyDeleteOf course it's not "my" victory, and I've never suggested otherwise. I've merely been highlighting what I think is the inexplicable and self-destructive actions of Tenenbaum post-verdict. I think a little contrition would go a long way in convincing Judge Gertner that he has already learned his lesson, and does not need a huge judgment to deter him from future bad acts. Instead, he has been defiant and unrepentant. I think that attitude could cost him dearly.
Were I advising Tenenbaum (and I'm obviously not), I'd tell him to be contrite, or be quiet. He's done neither.
Ben:
ReplyDeleteWhat is Joel's exposure to attorney's fees for the plaintiffs, given that everything was registered and that there was a finding of willful" infringement? Is this in Judge Gertner's discretion? Does the RIAA have to ask? Have they?
@Anonymous 5:11:
ReplyDeleteYes, Tenenbaum is potentially liable for attorneys' fees, which I would guess are at least several hundred thousand dollars. The plaintiffs have not yet filed a motion for attorneys' fees. Right after the verdict, there was a brief discussion between plaintiffs' counsel and the judge about when such a motion would be due, which indicates that the plaintiffs are at least considering filing such a motion.
Here's the relevant section of the Copyright Act:
§ 505. Remedies for infringement: Costs and attorney's fees
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
I say let him dig himself into a deeper hole. RIAA can sue him again.
ReplyDelete