Monday, August 10, 2009

TorrentFreak's Tenenbaum trial falsehood

TorrentFreak today had a post stating that the court "rejected" Dutch computer scientist Dr. Johan Pouwelse as a defense expert in the Joel Tenenbaum case, and implying that the court's actions resulted in an unfair trial. But the factual premise of TorrentFreak's post is false. Pouwelse was not "rejected" or otherwise excluded as a witness. Rather, upon the plaintiffs' motion (to which Tenenbaum never bothered to file an opposition), Judge Gertner limited Pouwelse's testimony to the subject of his actual expertise: peer-to-peer technology. Indeed, the plaintiffs never challenged his expertise on that issue. The only thing the court "rejected" was Pouwelse's proposed testimony on business and economic issues, subjects on which he admitted he lacks expertise.

It was entirely the choice of the defense team not to call Pouwelse to the witness stand. And calling him would have been a complete waste of time. The thrust of Pouwelse's expert testimony was criticism of MediaSentry and plaintiffs' expert Dr. Douglas Jacobson's conclusion that Tenenbaum had used KaZaA and other p2p applications to download and "share" music. But on the witness stand, Tenenbaum admitted to the activity of which he was accused, and in fact wholeheartedly endorsed Jacobson's opinions, calling him a "competent professional." And he acknowledged that MediaSentry had correctly identified him. Given Tenenbaum's admissions, it's hardly a surprise the defense chose not to call Pouwelse.


  1. The statement made was based on the statement made to me by Dr Pouwelse and Ms Rosenbaum. Of course, were the legal system more transparent, and understandable, such misunderstandings would not occur.

  2. It was my understanding that on Thursday of the trial Dr. Pouwelse was excluded from testifying during a sidebar conference. That's what I heard from members of the Defense counsel anyway.

    That isn't to say that the rest of this post isn't accurate. His testimony likely wouldn't mean much after the directed verdict on liability, but my understanding is still that he was excluded by Judge Gertner during the trial. If I'm wrong, please correct me.

  3. Judge Gertner made her ruling on Dr. Pouwelse in open court, "transparently," and in clear, understandable English, not legal jargon. And it wasn't a "misunderstanding"; it was an error, one that could easily have been avoided if your only sources weren't on one side of a disputed legal issue.

  4. @Marc:

    Pouwelse was not excluded. His testimony was limited to his area of expertise, which is the technical aspects of p2p. He was not permitted to testify to business or economic issues, given his admissions in his depo that he lacks expertise in those areas. Judge Gertner made her ruling on Pouwelse orally on Tuesday of trial, as I reported on Tuesday evening:

    Just today Judge Gertner formalized her order, granting in part and denying in part the plaintiffs' motion regarding Pouwelse:

    Judge Nancy Gertner: Electronic ORDER entered granting in part and denying in part [884] Motion to Exclude Testimony of Dr. J.A. Pouwelse by All Plaintiffs. "As stated from the bench at trial." (Gaudet, Jennifer)

  5. Her ruling you mention was on Tuesday. I don't dispute that the ruling on the scope of the testimony did occur during open court. I heard it with my own ears.

    What I was told happened was later on. Granted it was from one side of the case, based on sidebar. I don't know if that type of ruling can come at sidebar or not, I'm not an attorney, but I have no reason to believe it didn't occur.

    I'm not certain I am correct, but my information and source are laid out. I have no reason to believe I was lied to.

    It seems we simply disagree. Neither of us has enough information to convince the other there is an error in our beliefs, so only time will tell if more information comes out.

  6. @Marc:

    Today's ruling from Judge Gertner makes no sense if, as you say, she entirely excluded Pouwelse in an order at sidebar on Thursday. Today she memorialized her ruling "granting in part and denying in part" the plaintiffs' motion. She would not have denied it in part had she excluded him entirely.

  7. It's the Necker Cube! People see things differently! QED. We're all just styrofoam bits.

  8. "That's what I heard from the defense counsel" is not a "source".


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.