Friday, April 10, 2009

Grateful Dead lyricist Barlow discloses expert opinions in Tenenbaum case; 'no moral blameworthiness attaches to non-commercial sharing'

Joel Tenenbaum's defense team has made public a "declaration" from Grateful Dead lyricist, EFF co-founder and board member, and Berkman Center fellow John Perry Barlow, which represents his Rule 26(a)(2) disclosure of expert testimony. Barlow says he will draw upon his experience with the Dead -- who allowed fans to tape concerts -- in arguing that p2p distribution of music "does not threaten the music industry."

As I've previously mentioned, I predict huge fights over the admissibility of much of the testimony Tenenbaum plans to introduce at trial, including Barlow's. Barlow is certainly entitled to his opinions about the optimal business model for the music industry, but this case isn't about deciding the best business model; it's about determining whether the plaintiffs have proved their case that Joel Tenenbaum infringed their copyrights, and, if so, the appropriate amount of statutory damages. Barlow's disclosure suggests he will testify about damages. Does he have statistics to cite? Or only his own personal experience and beliefs? Like all experts, Barlow's testimony will be subject to the Daubert standard, and I suspect plaintiffs will argue that it does not meet it. Luckily for Tenenbaum, his attorney is intimately familiar with the subject.

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