Thursday, May 28, 2009

Tenenbaum trial set for July 20

It's going to be a very busy summer for the record labels -- and Team Tenenbaum.

Judge Nancy Gernter today issued an order setting the trial for accused peer-to-peer infringer Joel Tenenbaum for July 20 in Boston -- barely a month after the June 15 re-trial of Jammie Thomas-Rasset in Minneapolis. Judge Gertner made the July 20 date contingent on two things: 1) her granting Plaintiffs' Motion to Dismiss Counterclaims, thus "eliminating the need for additional discovery"; and 2) her denial or deferral until after trial of Defendant's constitutional challenge to the plaintiffs' claim for statutory damages. Those two issues will be considered at a hearing June 5 (this was the hearing that Tenenbaum sought unsuccessfully to have webcast).

This is reading tea leaves, but I think Judge Gertner is signaling here that she intends to dismiss Tenenbaum's counterclaims for abuse of process and to defer ruling on the constitutional challenge to statutory damages unless and until there is a plaintiffs' verdict and damages award to evaluate for alleged excessiveness. It is black letter law that courts should avoid ruling on constitutional issues unless and until necessary, and she can easily avoid ruling unless and until there is a statutory damages award staring her in the face. I also think she is signaling that she will not permit Tenenbaum to amend his answer so late in the game to add a fair use defense -- a defense that would be futile in any event.

Judge Gertner also set a deadline for summary judgment motions of June 23 and oppositions July 7 (there goes that lovely 4th of July weekend on the Cape!), though she suggested the parties may wish to wait: "Given the limited nature of this case, it may be appropriate for the parties to seek resolution of any legal issues at the time of trial, rather than before, pursuant to a Motion for Judgment as a Matter of Law under Fed. R. Civ. P. 50(a)."

With overlapping sets of attorneys on both the plaintiffs' and defendants' sides set for trials only a month apart, I would not be shocked if one or both sides moved for a continuance.

(h/t Recording Industry vs. The People)

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