Monday, October 5, 2009

Tenenbaum opposes entry of judgment and injunction; throws in kitchen sink

Back on September 1, the record label plaintiffs in the Joel Tenenbaum case filed a motion for entry of judgment pursuant to Rule 58(d). They asked that the judgment include an award of $675,000, as determined by the jury's verdict, as well as an injunction ordering the following:
Defendant shall be, and hereby is, enjoined from directly or indirectly infringing, or acting in concert with others in the infringement of, Plaintiffs’ rights under federal or state law in the Copyrighted Recordings and any sound recording, whether now in existence or later created, that is owned or controlled by Plaintiffs (or any parent, subsidiary, or affiliate record label of Plaintiffs) (“Plaintiffs’ Recordings”), including without limitation by using the Internet or any online media distribution system to reproduce (i.e., download) any of Plaintiffs’ Recordings, to distribute (i.e., upload) any of Plaintiffs’ Recordings, or to make any of Plaintiffs’ Recordings available for distribution to the public, or to promote or advertise using the Internet or any online media distribution system to infringe copyrights, except pursuant to a lawful license or with the express authority of Plaintiffs. Defendant also shall destroy all copies of Plaintiffs’ Recordings that Defendant has downloaded onto any computer hard drive or server without Plaintiffs’ authorization and shall destroy all copies of those downloaded recordings transferred onto any physical medium or device in Defendant’s possession, custody, or control.
Today Joel Tenenbaum filed his opposition to the plaintiffs' motion. Only a small portion of Tenenbaum's brief addresses the plaintiffs' request for the injunction. Rather, it rambles at length about the history of the music business over the past decade, and complains of various injustices allegedly done to Tenenbaum over the course of the trial, from granting summary judgment on fair use, to excluding his purported experts, to refusing to permit introduction of a settlement offer. And it mounts a constitutional attack on the jury's award of $22,500 per work in statutory damages. Whatever the merits of Tenenbaum's arguments (most of which have already been found by Judge Gertner to be meritless), I don't understand why Tenenbaum included them here. The only issue before the court is what form the entry of judgment will take (i.e., whether it will include the requested injunction). Once judgment is entered (and Judge Gertner has already stated that it "will" be entered), Tenenbaum will be free to file a motion for new trial under Rule 59, in which he can raise his substantive arguments, including those about the size of the monetary award; indeed Judge Gertner has stated that she will hold some sort of proceeding on that issue. His new trial motion will be due 10 days after the court enters judgment.

On the issue of the injunction itself, on which Tenenbaum spends only a page and a half of his 25-page brief, Tenenbaum makes no reference to the statute authorizing injunctions in copyright cases, or to the ample case law (much of which was cited by plaintiffs), specifying when an injunction is appropriate. Given Tenenbaum's admission of infringement of thousands of songs for over a decade, and even after he was sued, an injunction is more than appropriate here.

UPDATE: Make sure to read Peter Friedman's take at Here's a taste:
Now Nesson has proven he can’t write a brief. Yesterday on behalf of Tenenbaum he filed in the court that produced the $675,000 judgment against his client a document entitled Defendant’s Opposition to Entry of Judgment and Injunction (pdf)(the “Brief”). There are some non-frivolous arguments somewhere in that self-righteous screed, but they’re so buried in Nesson’s preference for rhetorical flourish over lawyerly detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on his incompetence. A lawyer’s job is to win the judge to his client’s side through persuasive reason and argument; it is not to throw a mess at the judge that may or may not contain winning arguments and leave it to the judge to find those winning arguments.
Nesson has filed numerous briefs like this before, and they have resulted in nothing but disaster for his client. Didn't Albert Einstein have something to say about "doing the same thing over and over again and expecting different results"?


  1. Yawn.
    Still trying to put the law as it stands on trial. Good luck with that.

  2. I found it out of the ordinary that Mrs. Nesson, apparently not an attorney, is listed on the motion together with other counsel. I am scratching my head trying to figure out why this is so.

    As for the motion itself, it reads like a law school lecture to students, and a misleading one at that in its numerous contradictions to long established caselaw and the statutes themselves.

    Is there something about teaching at Harvard that leads academics such a Nesson to believe that the FRCP and FRE each contain an exception when it comes to his submissions to the court?

    ...Shakes head in wonderment....

  3. This case is like the exploding rocket in the film Koyaanisqaatsi, it's a disaster in slow motion that never seems to end.

  4. Bruce I like your analogy.

    If we need yet another example of how badly the RIAA labels are coping with the digital world it can be found here:


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