Section 230 and the case of the (allegedly) cheapo cheese

The LA foodblogging world is all a-Twitter over a post in the popular Eater LA.

The Eater LA post re-prints an email from a tipster, whose identity the blog does not reveal, accusing a Downtown wine bar called The Must of surreptitiously serving cheapo cheese from a low-quality supplier, and various hygiene-related misdeeds. The Must's owners vigorously dispute the allegations, and told the LA Times that they "have receipts to prove it." And, says the Times, they are "angry enough to threaten...Eater LA with legal action."

Assuming that the charges are indeed false, I completely sympathize with The Must's owners in their anger at Eater LA, which apparently did not even contact them before publishing. But even if the allegations are libelous, it's doubtful The Must could win a suit against the blog. Here's why:

Section 230 of the Communications Decency Act provides virtually airtight immunity from defamation suits for web sites that re-publish material provided by others. It's why the LA Times is protected from suits over reader comments posted below its articles, and Craigslist can't be held legally accountable for running hooker ads. In a case called Barrett v. Rosenthal, the California Supreme Court made clear that the act of re-posting an email on a web site is immunized by Section 230 -- even though it acknowledged that protecting "those who intentionally redistribute defamatory statements on the Internet" has "disturbing implications." The victim's remedy, said the court, is to sue the person who actually made the allegedly defamatory statement.

There's one wrinkle that might -- and I emphasize might -- possibly trip up Eater LA, despite Section 230. Eater LA can certainly be held liable for its own words. And the Eater LA blogger did write this:

Owner Coly Haan once described her menu as "white trash food with a twist," apparently now it's erring more on the "trash" side.

Is the second reference to "trash" defamatory in itself? Or can these words be characterized as incorporating by reference the allegedly defamatory statements by the anonymous tipster, thus converting statements originally made by the tipster into Eater LA's own? I'm skeptical on both points, though less than 100% sure.

So if The Must wants to sue, its best target is the tipster, not Eater LA. Happy hunting...

Gertner allows limited financial discovery on fair use; again lectures Nesson on procedure

Judge Nancy Gertner has granted in part and denied in part Joel Tenenbaum's motion to compel interrogatory responses, ordering the record label plaintiffs to provide:

yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures.

Judge Gertner denied the rest of Tenenbaum's motion, criticizing his counsel, Harvard Law School Professor Charles Nesson, for his tardiness in seeking discovery:

Counsel filed his appearance in this case on September 22, 2008, when discovery was already underway. Yet he did not file his First Set of Interrogatories until May 8, 2009, more than seven months later, when the Court had already ordered that discovery would close on May 30, 2009.... Defendant's counsel protests that the case did not crystallize until early May and that his team's energies were consumed by the abuse of process counterclaims that the Court has now dismissed, the constitutional challenge that the Court has deferred, and the webcast dispute. Lawyers, however, constantly face strategic choices about how to expend limited time and resources to advance their client's case. Discovery is obviously a central tool in defending against a civil suit; it is hardly an afterthought. Moreover, many of the issues raised in the interrogatories -- the ownership of the copyrighted works and factors relating to damages -- have been at the core of this case from its inception. Having delayed seeking this discovery until the deadline was weeks away, and having failed to request a timely extension from the Court, Tenenbaum has forfeited his right to compel the Plaintiff to answer any interrogatories unrelated to the fair use issue.

Interestingly, Judge Gertner also said that she may permit additional discovery on financial issues after the trial:

The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him.

While I admit I haven't researched the issue whether post-trial discovery is ever permitted, this seems improper to me. One of the main purposes of statutory damages is to relieve copyright owners of the obligation to prove actual damages, because doing so is often difficult or impossible. So wouldn't it undermine the very purpose of statutory damages to require a successful plaintiff to later prove up its actual damages?

Here's the entire order:

Judge Nancy Gertner: Electronic ORDER entered granting in part and denying in part [852] Motion to Compel. "The Defendant's Motion to Compel [852] is GRANTED in part and DENIED in part. As a general matter, the Defendant's discovery requests are untimely under Fed.R.Civ.P. 33(b)(2). Counsel filed his appearance in this case on September 22, 2008, when discovery was already underway. Yet he did not file his First Set of Interrogatories until May 8, 2009, more than seven months later, when the Court had already ordered that discovery would close on May 30, 2009. See February 23, 2009 Order at 3 (document # 759). Rule 33(b)(2) provides that a party shall have 30 days from the date of service to respond to interrogatories, unless that period is altered by stipulation or court order. As a result, in order to be considered timely, such requests must be served with enough time for responses to be made before the discovery deadline. See Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003); Ginett v. Federal Express Corp., 166 F.3d 1213 (6th Cir. 1998) (unpublished); Whitman v. Proconex, Inc., 2009 WL 113740, at *4 (E.D. Pa. 2009); Williams v. Little Rock Mun. Water Works, 155 F.R.D. 188, 189 (E.D. Ark. 1993). Defendant's counsel protests that the case did not crystallize until early May and that his team's energies were consumed by the abuse of process counterclaims that the Court has now dismissed, the constitutional challenge that the Court has deferred, and the webcast dispute. Lawyers, however, constantly face strategic choices about how to expend limited time and resources to advance their client's case. Discovery is obviously a central tool in defending against a civil suit; it is hardly an afterthought. Moreover, many of the issues raised in the interrogatories -- the ownership of the copyrighted works and factors relating to damages -- have been at the core of this case from its inception. Having delayed seeking this discovery until the deadline was weeks away, and having failed to request a timely extension from the Court, Tenenbaum has forfeited his right to compel the Plaintiff to answer any interrogatories unrelated to the fair use issue. However, because the Court has held discovery open on fair use, discovery requests on this subject served prior to June 22, 2009, the deadline set by the Court, are treated as timely. See Revised Scheduling Order at 5 (document # 850). Yet even here the Defendant's late-breaking effort to add the fair use defense, and the imminent trial date reaffirmed today by the parties, necessarily limits the breadth of the available discovery. See Fed.R.Civ.P. 26(b)(2)(C). Thus, to the extent that Interrogatories 2, 3, and 8 seek information related to the fair use analysis under 17 U.S.C. 107(4) (requiring consideration of "the effect of the use upon the potential market for or value of the copyrighted work"), the Court will permit some investigation. By July 10, 2009, the Plaintiffs shall provide the Defendant with yearly estimates, beginning in 1999, of the revenues generated by their copyrights in the specific songs for which they intend to prove infringement at trial. They should separate physical and digital music sales and should provide Defendant with a description of the methodology used to arrive at these figures. The Court will reconsider the need for discovery on any issues relating to actual damages if and when the Defendant's constitutional challenge becomes ripe -- i.e., should the jury award damages against him." (Gaudet, Jennifer)

Gertner nixes Barlow as Tenenbaum expert: no 'philosophical pronouncements' from the stand

Judge Nancy Gertner has soundly rejected Joel Tenenbaum's effort to have John Perry Barlow testify as an expert at his July 27 trial, finding the former Grateful Dead lyricist's "[p]hilosophical pronouncements" about the music business an improper subject for expert testimony. Judge Gertner also rejected Barlow's Rule 26 disclosure as inadequate, saying the document "does not come close to th[e] threshold" requirement that it "offer...opinions in a manner that enables the opposing party to prepare adequately for trial." Judge Gertner did not address the plaintiffs' argument that Barlow's disclosure was untimely; nor does her order mention the plaintiffs' request for attorneys' fees.

Judge Gertner's ruling bodes very ill for the admissibility of the purported expert opinions of Brandeis University enthnomusicologist Wayne Marshall (Tenenbaum's counsel's son-in-law), whose report cites, among others, French literary critic and philosopher Roland Barthes.

Here's Judge Gertner's full order:

Judge Nancy Gertner: Electronic ORDER entered granting [855] Motion to Strike. "The Plaintiffs' Motion to Exclude Defendant's Expert John Perry Barlow [855] is GRANTED. The Defendant has indicated that no supplemental Expert Report will be forthcoming, therefore the Court considers the Amended Declaration presently before it (document # 855-2). This report indicates that Mr. Barlow proposes to testify on two main subjects relating to the "fairness of peer-to-peer file sharing in the context of the recording industry": (1) the impact of file sharing on the music industry's business model; and (2) how peer-to-peer technology furthers a fundamental human need to "share art." Id. at 2. Philosophical pronouncements like those in the latter category are not within the scope of expert testimony and the Court cannot give them the imprimatur of "expertise" at trial. Counsel for the Defendant analogized Barlow to the truck driver who offers expert testimony in an accident case on such things as the impact of a load shifting while driving. The analogy is misplaced: If Barlow were to testify about the creative process in which he has been engaged, that would be a matter of expertise drawn from experience. But he seeks to testify about market conditions, on the one hand, and philosophy and policy on the other. The truck driver who is an expert about trucking would not be permitted to testify, for example, about either existentialism or GM's bankruptcy. At most, the policy-judgments that Barlow intends to present may be better suited to testimony before Congress than testimony before a jury. If appropriate anywhere in the courtroom -- a question which the Court reserves -- these considerations belong in counsel's closing argument. With respect to the concrete impact of file sharing on the music industry, Barlow has not identified any data or publication that will support his views, nor does he describe in any depth the conclusions that he would draw from his "personal experiences in the music industry." Id. As a result, he has not provided the Plaintiffs with any basis on which they might examine him. Most notably, Barlow's four-page report fails to include "a complete statement of all opinions the witness will express and the basis and reasons for them," and "the data or other information considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B). It is not enough for Barlow to state that he will rely on his personal experience to testify broadly about a number of topics related to file sharing; an expert must actually disclose the testimony he intends to offer at trial, as completely as possible, and the specific foundation for his opinions. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). The Rules of Civil Procedure require Barlow to offer those opinions in a manner that enables the opposing party to prepare adequately for trial. The Amended Declaration does not come close to that threshold, and therefore he is excluded as an expert pursuant to Fed.R.Civ.P. 37(c)(1)." (Gaudet, Jennifer)

Is Jammie Thomas-Rasset still refusing to settle?

Sounds like it. Reports CNET's Greg Sandoval:

Just a couple days after Thomas-Rasset was found [liable for] willful copyright infringement and ordered by a jury to pay $1.92 million, attorneys with the Recording Industry Association of America called to ask whether Thomas-Rasset was willing to discuss a settlement, a spokesman for the RIAA said Monday.

Thomas-Rasset's lawyers responded that she wasn't interested in any deal that required her to pay any money or admit any guilt, according to the RIAA's spokesman. That was the same response the 32-year-old Minnesota woman gave after a jury decided against her in October 2007.

Contacted at his office on Monday evening, Joe Sibley, one of Thomas-Rasset's attorneys, told CNET News that he wasn't aware of any settlement talks but needed to ask his law partner.

How often does a plaintiff who just won a huge award at trial run to the defendant and offer to settle? And how often does a defendant who was just ordered to pay $1.92 million blow off the chance to settle for what I suspect is a tiny fraction of that? I'm still betting that Thomas-Rasset will come to her senses and settle. Even if bankruptcy can protect her from the judgment -- no sure thing -- that route is no picnic.

Tenenbaum: let me add expert late; ethnomusicologist just focused on own relevance

Joel Tenenbaum has moved for leave to permit the addition of Brandeis University enthnomusicologist Wayne Marshall as a defense expert, three months after the March 30 deadline for expert disclosures. The reason for the tardiness? Marshall just realized his expertise might be relevant. You got that right:

The reason for the lateness of the filing of this disclosure is that only recently did Dr. Marshall focus on how his expertise would be relevant to one judging the fairness of Joel’s use in relation to the copyright holder.

Silly me; I had always thought it was the parties' responsibility to identify relevant experts, and not the other way around.

As for the substance of Marshall's report, I'll just re-post what I wrote in my previous update: Marshall's report more than confirms my suspicion that his opinions, while they may be perfectly appropriate for academic discussions of ethnomusicology, are simply irrelevant to this case. For example, here's Marshall (who is Nesson's son-in-law) purporting to offer an opinion on the issue of transformativeness and fair use:

Listening is an active process, a rich domain of interpretation and imagination, manifesting differently – according to personal idiosyncrasies and cultural mores alike – for each person and in each moment. As anthropologist Steven Feld explains in the oft cited “Communication, Music, and Speech about Music” (Feld 1984), the listening process is, when one considers all that is potentially involved, an enormously complex phenomenon very much centered on the particular listener in question. According to Feld, listening as an act of “musical consumption” involves, among other things: the dialectics of the musical object itself (text-performance, mental-material, formal-expressive, etc.), the various interpretive moves applied by the listener (locational, categorical, associational, reflective, evaluative), and the contextual frames available at any moment (expressive ideology, identity, coherence).

All of this activity is inextricably social in character, regardless of the musical object in question. As Feld notes, “We attend to changes, developments, repetitions--form in general-- but we always attend to form in terms of familiarity or strangeness, features which are socially constituted through experiences of sounds as structures rooted in our listening histories” (85).

While grounded in communication studies and musical semiotics in Feld’s study, such an interpretation – centering the socially situated hearing subject rather than the musical object (whether live performance or mp3) – is also consistent with a great deal of literary and media theory from the past thirty years, from Roland Barthes’s infamous 1977 “Death of the Author” to Henry Jenkins’s contemporary theories about spreadability and value.

I'm the first to admit that I managed to graduate from college and law school without reading a word of Feld, Barthes, or Jenkins. But I've read more than enough fair use opinions to be confident that judges do not consider their views on "musical semiotics" or "literary and media theory" to have the slightest relevance to fair use analysis. If anyone can point me to a single fair use opinion in which a court has relied on the views of an ethnomusicologist, literary theorist, or musical semiotician, I'd be happy to reevaluate my opinion.

UPDATE: You know you're in trouble if you're fighting the labels and you've lost even the commenters at Recording Industry vs. The People. By the way, Ray Beckerman's comment asserting that "the Court has expressly ruled that it will not rule summarily on either fair use or due process, and will decide those only upon a full factual record of a trial of the merits" (emphasis added) is false. Judge Gertner has not ruled that there will be a trial on fair use, "expressly" or otherwise. Rather, she merely said she would not resolve the fair use issue "through the futility analysis applied under Fed.R.Civ.P. 12(b)(6)." Indeed, two of the cases Judge Gertner cites for this proposition, BMG Music v. Gonzalez and UMG Recordings v. MP3.com, Inc., are copyright cases where the court rejected the fair use defense on summary judgment. (The third, Gluck Corp. v. Rothenhaus, is a trademark case where the court declined to rule definitively on affirmative defenses at the motion to dismiss and preliminary injunction stage.) And, as I've noted, two years ago Judge Gertner herself granted summary judgment in favor of a copyright plaintiff while rejecting the defendant's fair use defense. Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass. 2007) (inclusion of photo in news broadcast was not fair use). I continue to doubt Tenenbaum's fair use defense will survive a summary judgment motion.

Nesson to Souter: allow webcast or block trial

Harvard Law Professor Charles Nesson has posted to his blog what appears to be a draft of a petition to Supreme Court Justice David Souter, asking him in his capacity as circuit justice assigned to the First Circuit to permit the webcast of district court proceedings in the Joel Tenenbaum case, or suspend proceedings until the Court has acted on his cert. petition:

I request that you, as presiding justice for the First Circuit, suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the Supreme Court of the petition for certiorari in due course.

It is time to open the courts of the United States to the internet and this case is a perfect test case in which to do so. The issues in it are of particular concern to the digital generation. The legal debates about them should be digitally recorded and accessible to them. To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. Given the court’s scheduling of the trial on July 27, 2009, in the absence of the requested suspension of the rule or a stay of the trial, the petition for certiorari will be moot. For these reasons, we seek your assistance.

Prof. Nesson's draft is dated June 25, though the petition is not yet listed on the case docket. It's my understanding that Justice Souter's resignation became effective when the Court recessed this morning; I don't know which justice will assume his duties as the First Circuit's circuit justice. On the issue of cameras in the courtroom, any justice is probably better than Justice Souter, who famously pronounced: "I think the case is so strong [against cameras in the Supreme Court] that I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."

Cablevision case: cert. denied

The Supreme Court has denied the copyright holder plaintiffs' cert. petition in the Cablevision case, following the recommendation of the Solicitor General. See page 9 of the order list. "Chief Justice [Roberts] and Justice Alito took no part in the consideration or decision of this petition," I presume because they own stock in one or more of the parties. The case is officially Cable News Network, et al. v. CSC Holdings, Inc., No. 08-448.

The Supreme Court's decision leaves in place the Second Circuit's opinion holding that Cablevision's proposed "remote-storage DVR" would not violate the copyright owners' exclusive rights to copy and publicly perform their works.

Disclosure: I worked on the Cablevision case when I was an attorney at Fox.

Tenenbaum trial prep: focus on fair use

Joel Tenenbaum has posted a new set of "observations," describing a recent meeting with Boston attorney and "special mentor" Matthew Feinberg at which the team discussed preparations for the July 27 trial. From Tenenbaum's account, it appears his defense is planning to focus on fair use:

I don’t think I’m giving away the subtleties of our “Super Secret Strategy” by saying that all evidence presented will be channeled into the four statutory fair use factors, as well as an additional factors Nesson will argue should also be held for consideration. Nesson believes we stand very well on the four factors, although it’s interesting to note that they are just suggestions. It is mandatory that you consider them, but there are no instructions on their interpretation, nor are they imposed to be the only factors to consider.

To say that the fair use factors are mere "suggestions" and that "there are no instructions on their interpretation" is just false. There are tens of thousands of pages of "instructions"; they're called "case law." And all of the case law on fair use in the peer-to-peer context flatly rejects the defense. See A&M Records, Inc. v. Napster, Inc. (upholding rejection of fair use defense at preliminary injunction stage); BMG Music v. Gonzalez (upholding rejection of fair use on summary judgment). (Not to mention that Tenenbaum's own potential experts think the fair use defense is a sure loser, a fact of which Judge Gertner herself has taken note.)

Remember: Judge Gertner has not ruled that she will permit Tenenbaum to argue fair use at trial. Rather, she has merely permitted Tenenbaum to amend his answer to include a fair use defense, and to take limited discovery on the issue. And by citing to Gonzalez, among others, she clearly recognizes that fair use is usually (i.e., almost always) resolved short of trial by the court, not a jury. Notably, two years ago Judge Gertner herself granted summary judgment in favor of a copyright plaintiff on fair use. See Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass 2007) (inclusion of photo in news broadcast was not fair use). I expect the plaintiffs to move for summary adjudication on Tenenbaum's fair use defense, and precedent clearly supports granting such a motion.

Two remaining questions as we head toward trial: 1) what happened to the "foster child, exchange student from Burkina Faso, or burglar" defense? And 2) where's the "Sam Waterston-level, big-name litigator [who will] plead the case when it comes to trial"? (Is that Feinberg? Or is the team still holding auditions?)

Tenenbaum wants new expert: Nesson's son-in-law

Another day, another strange revelation in the Joel Tenenbaum case.

Today we learned that just yesterday -- almost three months after the March 30 deadline -- Tenenbaum has disclosed a brand new expert. And that new purported expert, Wayne Marshall, happens to be married to the daughter of Tenenbaum's counsel, Harvard Law School Professor Charles Nesson. According to his official Brandeis University biography:

Wayne Marshall is the Florence Levy Kay Fellow in Ethnomusicology for 2007-09 and will be teaching courses through the Music and African/Afro-American Studies Departments. Specializing in the intersections between Caribbean and American popular music, he received his doctorate from the University of Wisconsin-Madison in 2007. His dissertation, Routes, Rap, Reggae: Hearing the Histories of Hip-hop and Reggae Together, examines the musical interplay between Jamaica and the US in the late twentieth century, following a particular set of melodic figures across several decades to illuminate the role that technology, migration, and mass media have played in the ongoing formation of hip-hop and reggae as (trans)national musics advancing an intertwined cultural politics of blackness.

All very interesting, but the relevance of Marshall's background in ethnomusicology to the issues in this case elude me. Putting aside the apparent lack of relevance, I can't imagine Judge Gertner (who says her "indulgence is at an end") permitting Tenenbaum to add an additional expert nearly three months after the deadline has passed.

Marshall's name first surfaced in a motion filed today, in which the record label plaintiffs ask Judge Nancy Gertner to address various discovery issues at the hearing, including the fact that Tenenbaum himself has scheduled a trip to Italy from tomorrow through July 6 -- despite the fact that Judge Gertner ordered his deposition to be completed by July 3. Plaintiffs have noticed Tenenbaum's depo for July 2, but say they are willing to postpone it (with the court's permission) until July 7. [Corrected; trip to Italy is for an academic conference, not vacation.]

The main purpose of Monday's hearing is argument on Tenenbaum's motion to compel interrogatory responses. The labels filed their opposition today; they argue:

Defendant’s Motion should be denied for three reasons: (1) Defendant failed to confer with Plaintiffs’ counsel regarding the Motion to Compel; (2) Defendant’s First Set of Interrogatories was untimely; and (3) the Interrogatories at issue are objectionable, and not reasonably calculated to lead to the discovery of admissible evidence.

That Nesson would have filed his motion without conferring, in violation of both Rule 37 and the District of Massachusetts Local Rules, is particularly shocking given that Judge Gertner has previously lectured him on precisely this issue:

The Court notes with displeasure the continuing difficulties with the meet-and-confer requirement imposed by Fed. R. Civ. P. 37(a) and D. Mass. Local Rule 37.1. These Rules require that the Defendant confer in good faith with opposing counsel prior to filing any discovery motion, in an effort to resolve discovery disputes without recourse to the Court, with the purpose of reducing litigation costs for all.... Nothing entitles the Defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the Local Rules of this Court, or to dispense with them where they fail to suit his counsel's teaching style.

Judge Gertner can easily dispose of Tenenbaum's motion on either of the two procedural points the plaintiffs raise, without even reaching the substance, and would be more than justified in granting the attorneys fees that the labels seek.

UPDATE: Recording Industry vs. The People has posted an unsigned copy of Marshall's expert report. It more than confirms my suspicion that his opinions, while they may be perfectly appropriate for academic discussions of ethnomusicology, are simply irrelevant to this case. For example, here's Marshall purporting to offer an opinion on the issue of transformativeness and fair use:

Listening is an active process, a rich domain of interpretation and imagination, manifesting differently – according to personal idiosyncrasies and cultural mores alike – for each person and in each moment. As anthropologist Steven Feld explains in the oft cited “Communication, Music, and Speech about Music” (Feld 1984), the listening process is, when one considers all that is potentially involved, an enormously complex phenomenon very much centered on the particular listener in question. According to Feld, listening as an act of “musical consumption” involves, among other things: the dialectics of the musical object itself (text-performance, mental-material, formal-expressive, etc.), the various interpretive moves applied by the listener (locational, categorical, associational, reflective, evaluative), and the contextual frames available at any moment (expressive ideology, identity, coherence).

All of this activity is inextricably social in character, regardless of the musical object in question. As Feld notes, “We attend to changes, developments, repetitions--form in general-- but we always attend to form in terms of familiarity or strangeness, features which are socially constituted through experiences of sounds as structures rooted in our listening histories” (85).

While grounded in communication studies and musical semiotics in Feld’s study, such an interpretation – centering the socially situated hearing subject rather than the musical object (whether live performance or mp3) – is also consistent with a great deal of literary and media theory from the past thirty years, from Roland Barthes’s infamous 1977 “Death of the Author” to Henry Jenkins’s contemporary theories about spreadability and value.

I'm the first to admit that I managed to graduate from college and law school without reading a word of Feld, Barthes, or Jenkins. But I've read more than enough fair use opinions to be confident that judges do not consider their views on "musical semiotics" or "literary and media theory" to have the slightest relevance to fair use analysis. If anyone can point me to a single fair use opinion in which a court has relied on the views of an ethnomusicologist, literary theorist, or musical semiotician, I'd be happy to reevaluate my opinion.

Tenenbaum: Labels again move to strike John Berry Barlow expert declaration, seek attorneys' fees

Expert disclosures in the Joel Tenenbaum case were due March 30.

Tenenbaum served its disclosure for purported expert John Perry Barlow, the former Grateful Dead lyricist, on April 10 -- ten days late. After the labels claimed that the Barlow report was inadequate, Tenenbaum served a slightly revised (though unsigned) version on May 29. The plaintiffs then moved to strike the Barlow declaration as both late and inadequate, but Judge Nancy Gertner gave Tenenbaum one more shot, allowing him to submit a new Barlow report by June 22.

It appears Tenenbaum's counsel, Harvard Law School professor Charles Nesson, tried to get Barlow to revise his report:

Alas, no new report was forthcoming. Thus the labels have once again moved to strike Barlow's report, and bar him from testifying at trial. In sum:

The Barlow report served on April 10, 2009, and amended on May 29, 2009, fails to satisfy the requirements of Rule 26(a)(2)(B)(i), (ii), or (iv). If allowed, Barlow claims he would testify that (a) the Internet and peer-to-peer technology “allow us to do that which we, as humans, fundamentally need to do: share art,” (b) “the music industry will never be endangered,” and (c) “the recording industry must evolve.” See Exhibit B at 2-3. His report, however, fails to offer any basis or reason for these opinions other than his “personal experiences” and his “position as a public intellectual,” (id. at 1-2), fails to identify a single source of data or other information considered, and fails to list Barlow’s purported qualifications, all of which are required by Rule 26(a)(2). Similarly, the only additions to Barlow’s amended report are bald statements that his “positions and experiences qualify [him] to speak about the fairness of peer-to-peer file sharing in the context of the recording industry and the technological environment in which such actions occur” (Exhibit B at ¶ 1) and that he has no publication that must be disclosed. (Exhibit B at ¶ 9). As explained above, this report does not comply with the requirements of Rule 26(a)(2)(B) because it does not contain a complete statement of all opinions to be expressed, the reasons therefore, or the data or other supporting information considered by the witness in forming the opinion.

The labels tried to get Nesson to withdraw Barlow as an expert, given the failure to serve a new report. Nesson refused (see pages 11-12).

Judge Gertner says her "indulgence is at an end." Granting this motion, including the labels' request for attorneys' fees, would demonstrate that she meant it.

Studios: Withheld patent applications contradict RealNetworks' position in RealDVD case

It's been over a month since the preliminary injunction hearing in the studios' case against RealNetworks over the "RealDVD" ripper, and still no decision from Judge Marilyn Hall Patel. But, as Greg Sandoval reports in CNET, the attorneys are still hard at work, and yesterday filed some very interesting papers that appear to directly contradict Real's litigation positions regarding ripping software known as ARccOS and RipGuard:

The Motion Picture Association of America has accused Real of misleading the court about the company's attempts to circumvent ARccOS and RipGuard and whether the technologies are actually copy protection measures.

Despite arguing the contrary in court, Real wrote in patent applications filed with the Patent and Trademark Office in 2007 and 2008, that the two software were indeed copy protections, MPAA alleges. Those applications were published by the patent office two weeks ago.

***

"Real and its witnesses have told the court that ARccOS and RipGuard are not copy protection technologies and that Real's engineers did not know how ARccOS and RipGuard worked," wrote MPAA lawyers in documents filed with U.S. District Court in San Francisco. "Yet Real simultaneously has told the PTO that RipGuard' and ArccOS are 'copy protection mechanisms' and then described specific techniques used by ARccOS and RipGuard."

The MPAA attorneys also said "Real has told the court, through witnesses and proposed findings, that ARccOS and RipGuard can only delay but cannot prevent a 'linear copy' of DVDs. But Real is insisting to the (patent office) that ARccOS and RipGuard can 'cause an archiving process to fail' or 'never complete'--exactly contrary to its representations to this court.

Studios request for judicial notice re patents applications

And for any true geeks, here are the patent applications themselves.

One interesting side note: Real's attorneys offered to stipulate to the admission into evidence of the patent applications -- but only if the studios refrained from accompanying them with any briefing explaining their significance. I wonder why...

UPDATE: Real has given a statement to Video Business:

The studios' motion is nothing more than a regurgitated argument of the same issues that have already been submitted to the court for decision, this time using misleading sound bites from patent applications of which the studios admit they have long been aware.... Hollywood is once again trying to use a sleight of hand to distract the court and the press from the real issue in this case: whether the studios should be allowed to take away consumers’ fair use rights only to sell it back to them.

Lots of rhetoric; zero substantive response to the studios' motion.

'Corzine Times': Infringement? Parody? Satire? Homage?

The Republican Governors Association thought it had a clever idea for attacking incumbent John Corzine (D-NJ), who is up for reelection this year: create a web site for a fake newspaper called The Corzine Times, with links to real stories bashing Corzine. The Corzine Times just happens to resemble another newspaper across the Hudson.

Well, that other newspaper is not amused; it quickly sent a cease and desist letter to the RGA, complaining that the site

is clearly intended to be nearly identical to NYTimes.com...The title for the site is designed to recall the world famous, protected New York Times logo, and the pages use the same fonts and layout as nytimes.com in order to mimic its design. Such copying is a clear infringement of The Times's rights under the Copyright Act of 1976 and falsely suggests, in violation of the Lanham Act, that the Times has sponsored or is otherwise affiliated with your website.

The Times' letter, dated June 17, gives the RGA three days to take down the site, "or we will have no choice but to pursue all available legal remedies." It's now been eight days since the letter was written, and the Corzine Times is still up. If the Times was so eager to have the site down, why hasn't it just sent a DMCA notice to the Corzine Times' ISP?

The RGA certainly doesn't sound like it's backing down; spokesman Mike Schrimpf tells the Washington Post's Chris Cillizza (whom I like to call my stalker, since he succeeded me directly in two journalism jobs):

It's amusing to see The Gray Lady standing up for The Gray Beard, but we were hoping the Times would send a cease and desist notice to Corzine telling him not to hike taxes by another $1 billion.

This could turn out to be a very interesting case; I'm not at all confident in predicting how a court will see it.

UPDATE: a reader reminds me of another parody/satire/who knows of the NY Times:


I'm not aware that the Times ever objected to this one, though DeBeers, the target of a fake ad in the fake Times, did. The fake Times remains accessible on the web.

Nesson listens to Sublime's 'April 29, 1992 (Miami)'; oh, the irony...

Joel Tenenbaum's lead counsel, Harvard Law Professor Charles Nesson, informs us via Twitter that he is listening to the songs his client has been accused of infringing, mentioning specifically Sublime's "April 29, 1992 (Miami)." That Tenenbaum would have downloaded this song, and that his attorneys argue that to have done so requires no payment to the copyright owners (fair use!), is one of the great ironies of the case.



The song (at least as I interpret it, though feel free to disagree in the comments) is a revisionist take on the 1992 LA riots. According to the song's protagonist, the riots were not part of a grand political movement, a protest against racial injustice in general and the Rodney King verdict in particular. Rather, as the narrator would have it, the rioters cynically used the King verdict as an excuse to go steal stuff (and lash out at the authorities):

First spot we hit it was my liquor store.
I finally got all that alcohol I can't afford.
***
Next stop we hit it was the music shop,
It only took one brick to make that window drop.
Finally we got our own P.A.
Where do you think I got this guitar that you're hearing today?
***
When we returned to the pad to unload everything,
It dawned on me that I need new home furnishings.
So once again we filled the van until it was full,
since that day my livin' room's been more comfortable.
***
They said it was for the black man,
they said it was for the Mexican,
and not for the white man.

But if you look at the streets it wasn't about Rodney King,
It's bout this fucked up situation and these fucked up police.
It's about coming up and staying on top
And screamin' 187 on a motherfuckin' cop.

Making grand statements about freedom as an excuse to get free stuff, while lashing out at The Man? Sounds a lot like...the Joel Tenenbaum case.

Nesson: I'm 'under ridicule and attack'; Berkman Center not backing Tenenbaum defense

In what at points reads like an impassioned blog rant slapped on pleading paper, Harvard Law School Professor Charles Nesson has filed a "response" to Judge Nancy Gertner's June 16 order, in which the Boston jurist referred to Nesson's practice of "taping opposing counsel without permission" as a "violation of the law." Nesson, who is leading the defense of accused peer-to-peer infringer Joel Tenenbaum, directly takes on Judge Gertner's observation that "the important issues in this case have been overshadowed by the tactics of defense counsel":

I am not overshadowing important issues in this case by my tactics. Throughout these proceedings, I have come under ridicule and attack for attempting to make the process and public proceedings of this case accessible to the digital public. Whatever the ultimate outcome of these campaigns, which have now gone so far as to accuse me of committing a felony, I will continue to try to make as much of this case open to the internet as is possible under the law. I believe that the capacity to inform and educate the digital public is at the heart of this case and that my efforts to record the proceedings in this case are both lawful and in the best interest of my client.

I think Professor Nesson mischaracterizes the criticism he has encountered. It is not part of a "campaign." And it isn't on account of his desire to have the proceedings open to the public. I, for one, supported his effort to have district court proceedings webcast to the world; I even signed on to an amicus brief authored by the EFF (my frequent ideological foil) in support of the Internet broadcast.

Rather, the reason that I -- and countless others -- have publicized and criticized Professor Nesson's tactics is that they deviate so radically from the normal rules and practices of litigation in federal court, likely to the detriment of his own client, and prejudicing the plaintiffs, who (as Judge Gertner has recognized) have every right to sue those who infringe their copyrights. Posting emails where potential experts tell you that your primary defense is baseless is not normal. Noticing a deposition for a law school auditorium (while violating various other procedural rules) is not normal. Filing a 3-page, substance-free appellate brief, whose only citation (incorrect at that) is to a Bible verse, is not normal. Recording telephone conferences with judges and opposing counsel is not normal. Refusing to participate in meet-and-confers if opposing counsel will not consent to recording is not normal. Posting songs to a public web site, a blatant copyright violation, while litigating a copyright case about those very songs, is not normal -- indeed, it's the height of recklessness. And having a federal judge tell a Harvard Law School professor that he has committed a "violation of the law" -- yes, a law that happens to be a felony -- is so extraordinary that I'm shocked that both Harvard and the Commonwealth of Massachusetts appear to be doing precisely nothing about it.

Fighting for openness in the federal courts does not require resort to bizarre and potentially unlawful tactics. Every day, all over the country, First Amendment lawyers fight for camera access to the courts, file motions to unseal documents, and seek to open up closed courtrooms. They fight hard, and with just as much passion as Professor Nesson obviously has for his cause, but they do so within the rules. And they do so without flouting the commitment to attorney-client (and attorney-attorney) confidentiality that is an equally vital part of our legal system (not to mention an ethical requirement).

The last part of Professor Nesson's brief really goes off the rails:

Unlike the RIAA, which claims it is educating the public but acts to shut down such education, i would like to make it possible for the world to follow this case. i would like every citizen interested in the future of the net to follow the trial, hear the arguments, listen to the songs at issue, experience the witnesses, deliberate the issues, and learn the law as i believe it can and should be taught and as i do my best to teach it. Open publication of relevant court documents and commentary opens the courts to the digital public, allowing the people as much access as is possible under the law to view the trial of this case. Repressing this potential through aspersion and threats is part of what Joel is fighting back against.

Not even capitalizing "i"? Seriously? Is this is a brief in federal court written by the William F. Weld Professor of Law at Harvard Law School, or a text message from a 13-year-old to her BFF?

The first part of Nesson's brief is more sober, pointing out that his defense of Tenenbaum is in his "individual pro bono capacity," and not under the aegis of Harvard's Berkman Center for Internet & Society, which he founded and serves as Faculty Co-Director. Why is the Berkman Center maintaining its distance? I'm sure that the reason the center "declined [Nesson's] request to make the defense of Joel Tenenbaum part of its clincal program" is a fascinating story in itself.

RIAA spokeswoman: Thomas-Rasset damages award was 'unexpected'; 'We will settle this case if she allows it'

Yes, everyone was surprised by the size of the size of the $1.92 million verdict against Jammie Thomas-Rasset -- even the RIAA. Elaborates RIAA spokeswoman Cara Duckworth on the trade association's blog:

By now everyone knows what the verdict was. It’s fair to say that the damages were unexpected given the size of the award in the previous trial. But when it comes down to it, the jury heard a case about Ms. Thomas-Rasset distributing more than 1700 songs to potentially millions of people – not merely downloading 24 songs. We will settle this case if she allows it. We’ve always wanted to settle this case. But she has consistently refused, which has led us to today’s verdict.

***

I wonder what Ms. Thomas-Rasset must be thinking right now. One thing is clear – it is our sincere hope that she changes course and opens herself up to a settlement to make this better for everyone. We remain ready and willing.

Just to clarify one point: it is true that evidence was presented establishing that there were 1,702 song files in Thomas-Rasset's Kazaa shared folder. However, the jury awarded damages only as to 24 specific songs. The jury was presented with evidence establishing that Thomas-Rasset had both downloaded and distributed those songs, though the verdict form asked only whether the defendant had committed an "act of infringement" as to each song. The jury was instructed on both reproduction (downloading) and distribution ("sharing").

Richard Marx: Thomas-Rasset 'got a raw deal'

Just about the whole world has by now weighed in last week's $1.92 million copyright verdict against Jammie Thomas-Rasset. Except, until now, Richard Marx, whose "Now and Forever" was one of 24 songs the jury found Thomas-Rasset had downloaded and "shared" on Kazaa. As Ars Technica reports, Marx says he has "always objected to the practice of illegal downloading of music." But he's no fan of this verdict, and says he's "ashamed" to be linked to it:

So now we have a "judgment" in a case of illegal downloading, and it seems to me, especially in these extremely volatile economic times, that holding Ms. Thomas-Rasset accountable for the continuing daily actions of hundreds of thousands of people is, at best, misguided and at worst, farcical. Her accountability itself is not in question, but this show of force posing as judicial come-uppance is clearly abusive. Ms. Thomas-Rasset, I think you got a raw deal, and I'm ashamed to have my name associated with this issue.

Ars' Nate Anderson, who pleads guilty, with an explanation, to actually owning a Richard Marx CD, correctly notes that "Now and Forever" was the only one of several songs played at the trial that Judge Michael Davis professed to enjoy. (Sarah McLachlan's "Building A Mystery" and No Doubt's "Different People" failed to earn his judicial seal of approval.)

Personally, I'm still waitng for reax from Gloria Estefan, Joe Elliott, and most of all, Slash.

Best Request for Admission of All Time

From the record label plaintiffs' written discovery regarding Joel Tenenbaum's fair use defense:

Admit that the image attached hereto as Exhibit 1, with the caption, 'Destroy Capitalism, Support Piracy,' is a true and correct copy of an image that was posted to the Internet by your counsel.

Exhibit 1:


Also in Tenenbaum-land, the defendant has filed a motion to compel responses to interrogatories regarding the revenues derived from the plaintiffs' copyrights. The plaintiffs had refused to respond substantively on the grounds that the interrogatories were untimely, as well as overbroad and burdensome. Interestingly, as for each interrogatory, Tenenbaum writes, "Defendant Tenenbaum requests that the plaintiffs be compelled to respond to this interrogatory in a manner they consider fair" (my emphasis). Some loophole! [UPDATE: Judge Gertner has set a hearing on this motion for Monday at 9:30 a.m. Also, a friend emails me that the labels' position is entirely correct; the case law (which I have not read myself) says that where there is a discovery cut-off, the propounding party must serve discovery in time to give his opponents the full 30 days to respond. See Edberg v. CPI, Inc., 2000 WL 1844651, *2 (D.Conn. 2000); Bailey v. Komatsu Forklift U.S.A., Inc., 2008 WL 2674886, *3 (N.D.Iowa 2008) ("parties seeking discovery [must] file their requests sufficiently in advance of the deadline, such that the responses are due by the deadline for completion of discovery"); Smith v. Principal Cas. Ins. Co., 131 F.R.D. 104, 105 (S.D.Miss. 1990).]

Lastly, Tenenbaum has filed a motion to suppress all evidence collected by MediaSentry, the firm retained by plaintiffs to identify p2p infringers, citing the Massachusetts Private Detectives Act, Mass. Gen. Law Ch. 147 § 22 et seq.; the federal Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510 et seq.; and the Massachusetts Wiretapping Statute, M.G.L. 272 § 99:

In orchestrating this campaign, built around illegally obtained evidence and targeted at individuals, most of whom faced millions of dollars of potential liability without the assistance of counsel, these lawyers violated the ethical rules governing our profession on an unprecedented scale. We respectfully request that this Court remedy this ethical violation by suppressing all MediaSentry evidence in this case. In the first recording-industry prosecution to go to trial, the jury returned a verdict of $1.92M, or $80,000 per song for 24 songs. We submit that, with stakes this high, the federal courts should make clear to the world that the kind of gross abuse of federal process that we have seen in the last seven years will never again be permitted.

On June 11, Minnesota federal judge Michael Davis denied a very similar motion by Jammie Thomas-Rasset. The irony of Tenenbaum's counsel complaining of a violation of Massachusetts General Law, Chapter 272, Section 99, is staggering.

Professor Nesson's recording: What we know

Now that Boston federal judge Nancy Gertner's pronouncement that Harvard Law School Professor Charles Nesson's practice of "taping opposing counsel without permission" constitutes a "violation of the law" has begun to receive some mainstream attention, I thought it would be useful to collect in one place exactly what we know about Nesson's recording practices.

THE FACTS

I know of at least four separate instances in the context of the Joel Tenenbaum case where Nesson has recorded others, at least in part without permission, and then posted (or members of his defense team posted) the recordings to the Web:

1) Nesson recorded his client Joel Tenenbaum's deposition, which I believe occurred on September 24, 2008. It is my understanding that at least part of this recording (e.g., recording conversations during breaks from the actual deposition) occurred without the permission and/or knowledge of plaintiffs' counsel.

2) Nesson recorded the initial portion of an informal telephonic conference with Judge Gertner and opposing counsel that I believe took place in late January 2009. The initial part of the conference was recorded without the apparent knowledge of Judge Gertner or plaintiffs' counsel. Nesson appears to have stopped recording after being ordered to do so by Judge Gertner.

3) Nesson recorded the initial portion of a telephonic conference on June 8, 2009 in Capitol v. Jammie Thomas-Rasset. Nesson appears to have stopped recording after being ordered to do so by Judge Michael Davis. (Nesson was attempting to record the proceedings in the Thomas-Rasset case in aid of his defense of Tenenbaum.) Nesson's reaction after being told not to record: ":<(".

4) Nesson recorded a conversation with his wife Fern in late March 2009, in which they discussed the Tenenbaum defense. Fern Nesson later told the Boston Globe that "she was unaware he tape-recorded her," and that her husband "constantly carries a tiny digital tape recorder around their Cambridge house and must have turned it on when she wasn't looking."

On several other occasions, Professor Nesson has attempted to record telephonic "meet-and-confers" with opposing counsel, though it is not clear whether Nesson actually did record any portion of those conversations, or whether the conversations simply ended when plaintiffs' attorneys refused to be recorded.

(For an older example of Professor Nesson's recording practices, see this 2002 profile in the Harvard Crimson.)

THE LAW

The first official mention by the court of the possibility that Nesson's recording may constitute a violation of the law came in an order on February 23, 2009, in which Judge Gertner wrote:

An issue has arisen with respect to the recording of counsel communications. The parties are advised that any such recording without permission of the participants, as well as the broadcast of such communications, runs afoul of Mass. Gen. L. c. 272 § 99.

On March 9, 2009, Judge Gertner stated in an order:

As before, the good faith meet-and-confer sessions required by Rule 37 must not be conditioned on Plaintiffs' consent to the recording of those sessions.

And then on June 1, Judge Gertner wrote in an order:

The telephonic deposition shall be stenographically transcribed, as are all depositions, and shall not be electronically recorded by any means except by the court reporter for the sole purpose of creating an accurate transcript.

And most recently, on June 16, Judge Gertner wrote in an order:

The court's indulgence is at an end. Too often...the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and emails with potential experts (who have rejected the positions counsel asserts) on the internet, and now allegedly replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that Defendant is accused of file-sharing.

(my emphasis). There is no doubt in my mind that "the law" of which Judge Gertner believes Professor Nesson is "in violation" is the same "law" to which she referred in her February 23 order: Massachusetts General Law, Chapter 272, Section 99, which makes it a felony, punishable by up to five years in state prison, to record conversations without the consent of all parties, or to "disclose" such recordings. The statute also provides for civil remedies.

To be absolutely clear: Professor Nesson has not been formally charged with any violation of the law. I have no reason to believe that his conduct is being investigated by any law enforcement or other authorities. And the plaintiffs in the Tenenbaum case have not moved for sanctions against him regarding his recording practices.

RIAA blog: Thomas-Rasset jury like a focus group of 'real world music listeners'

The RIAA's "Music Notes" blog has weighed in with a bit more reaction to last week's $1.92 million verdict against Jammie Thomas-Rasset, likening the jurors (and those from the 2007 first trial) to a focus group of "'real world music listeners":

Last week we got a chance to listen to one of these groups outside the usual circumstances. It wasn’t a research project, and it wasn’t by sitting behind a two-way mirror. This group of 12 industry outsiders likely hadn’t engaged in debates about long-tail sales theories, the effectiveness of DRM schemes, or consumption patterns of digital media when marginal costs approach zero. Which isn’t to say they were disengaged – most of them had mp3 players, and at least some knew what peer-to-peer software was. But overall, they were probably a good cross section of ‘real world’ music listeners.

We’re speaking, of course, of the 12-person jury in Minneapolis who rendered a decision in the case involving Ms. Jammie Thomas-Rasset (http://www.riaa.com/newsitem.php?id=67AC2E75-E62A-1823-9604-FD0F15EF0F63). This group of 12 Minnesotans showed us that, despite the protestations of some pundits who suggest that the digital world should resemble some kind of new wild west, the majority understands and believes that the same laws and rules we follow every day apply online. Not just in theory, but in practice. Another group of 12 people presented with similar questions said the same thing two years ago (http://news.cnet.com/Rights-and-wrongs-in-the-antipiracy-struggle/2010-1027_3-6213649.html?tag=mncol). That makes a sample size of only 24, but it’s certainly enough to learn from.

If I could write funny and British...

This is what I'd say. From Andrew Orlowski in The Register:

Freetard prof faces fine, jail

And the trial hasn't even begun

Harvard professor Charlie Nesson's loony-tunes defence tactics in a file-sharing case against the US record industry may land him in the clink.

The 69-year old co-founder of the New Age think-tank the Berkman Center, is defending former student Joel T[e]nenbaum in a copyright infringement case, using Harvard undergrads to do the grunt work. However the Judge has already lost patience with Nesson's eccentric pre-trial tactics - which include taping and publishing conversations without the participants' permission, and re-posting the files T[e]nenbaum shared to the web. It's driven Federal Judge Nancy Gertner nuts, and she's lost patience.

Go read the whole thing.

Labels: Tenenbaum must pay attorneys' fees for motion re uploading songs; is Judge Gertner's indulgence REALLY at an end?

Judge Nancy Gertner was clearly incredulous that Team Tenenbaum would upload, for worldwide distribution via the Internet, the very songs at issue in this case. Now Plaintiffs have filed a motion to recover their attorneys' fees for filing the motion, now granted by Judge Gertner, to compel discovery responses regarding this imbroglio. Rule 37(a)(5) says the party who loses such a motion "must" pay the winner's attorneys' fees, unless the loser's position was "substantially justified" or "other circumstances make an award of expenses unjust." From her order, it does not appear Judge Gertner thought Tenenbaum's position was even marginally justified. The only way I can see her not awarding attorneys' fees her is if she believes it would be "unjust," given the imbalance of resources between the parties.

Judge Nancy Gertner says her "indulgence is at an end." We shall see.

Plaintiffs Motion for Attorneys Fees Re Uploading Songs

The Jammie Thomas-Rasset verdict: Why?

Now that I've had a few days to reflect on the Jammie Thomas-Rasset verdict, and read a mountain of commentary from across the copyright spectrum (consensus: she did it, but the damages award was way too big), I wanted to weigh on with some thoughts about why the jury did what it did. Ideally we'd hear from at least one of the jurors (like we did after the first trial), but apparently they aren't talking, and so the best we can do is engage in some informed mind-reading. Here goes: my top three reasons why the plaintiffs won -- and won big (maybe too big).

1. The evidence that she did it was overwhelming.
The plaintiffs put on three witnesses whose testimony collectively established beyond any doubt that the computer in Thomas-Rasset's bedroom was being used to "share" 1,702 songs files (including the 24 songs specifically at issue) on February 21, 2005: Chris Connelly of MediaSentry, Heather Nessler of Charter Communications, and plaintiffs' expert Dr. Douglas Jacobson. Those three witnesses came across and knowledgeable and forthright, and the defense barely laid a glove on them on cross examination. Their testimony (which also established that the songs in the "tereastarr" Kazaa shared folder were downloaded, as opposed to being ripped from legitimately bought CDs), was essentially unchallenged by the defense.

Instead, the defense argued to the jury: well, even if you accept everything that Connelly, Nessler, and Jacobson say, that just gets you to the computer -- but not to Thomas-Rasset herself. But the problem for the defense was that the plaintiffs did have strong circumstantial evidence demonstrating, at least under the civil "greater weight of the evidence" standard, that she used Kazaa to download and "share" music. This evidence included, at least: the location of her computer in her bedroom, the consistency between her musical tastes and the songs in the shared folder, the use of the user ID "tereastarr," her testimony that she "watched" when her kids used the computer, her testimony that only she had the password to the "admin" account, her admission that she had never seen anyone else using the computer to download or listen to music, and what the plaintiffs characterized as her effort to cover up her infringement by telling a falsehood about the date when she had installed a new hard drive.

Thomas-Rasset's rejoinder to all this was a stubborn "I didn't do it," coupled with finger-pointing at her ex-boyfriend and kids. But, as the plaintiffs repeatedly hammered home, her "blame-the-ex-and-kids" defense was brand new, never before mentioned in over three years of litigation, in two sworn depositions and one "prior proceeding," i.e., trial. That fact alone cast serious doubt on her credibility. And, as I pointed out after her testimony, there were numerous other logical and factual problems with her theory. At best, Thomas-Rasset may have shown that her ex and kids used Kazaa in addition to her; she didn't come close to rebutting the evidence demonstrating that she herself used it.

In sum, virtually all the evidence presented at trial pointed toward one conclusion: Jammie Thomas did exactly what the labels accused her of doing.

2. The jurors were offended by her testimony.
If it seems inevitable (at least in retrospect) that the plaintiffs won on liability, the amount that the jurors awarded for her infringement -- $80,000 for each of 24 songs, totaling a whopping $1.92 million -- was not. So why that figure? First, it bears repeating that the jurors had almost no guidance, from either the plaintiffs or defense, as to where the amount should fall within the $750-$150,000 allowed by the statute. The defense (whose position was that she didn't do it, so the amount should be zero) said repeatedly that the plaintiffs were seeking the maximum -- $3.6 million -- but the plaintiffs forcefully denied that, making clear that they were leaving determination of the proper amount to the jury. Said plaintiffs' counsel Tim Reynolds in closing argument:

How much in damages is for you to decide. We leave this in your good hands.

There was virtually no evidence presented about the actual harm to plaintiffs from Thomas-Rasset's infringement. Representatives of the plaintiffs, including Sony BMG's Wade Leak and UMG's JoAn Cho, spoke in general terms about job losses and lost sales from p2p piracy, but (understandably) neither could provide specific numbers as to the harm caused by Thomas-Rasset herself. My best guess as to how the jury settled on $80,000 per work? It's about mid-way between the minimum and maximum under the statute.

Still, $80,000 is a huge number, and surely the jury knew that $80,000 multiplied by 24 is a truly mammoth award. So a mid-way compromise doesn't fully explain it. Again, this is mind-reading on my part, but I think the jurors were offended by her testimony and actions for at least two reasons. First, during voir dire, many of them said they (or their kids) owned iPods, and obtained their music legitimately, through iTunes. I suspect that many of them thought, "Hey -- I pay for my music, with my own hard-earned dollars. Who does she think she is that she can get her music for free?" Second, I suspect that many of them were offended, perhaps outraged, by Thomas-Rasset's finger-pointing at her ex and kids. They obviously did not believe her, as even her defense counsel Kiwi Camara acknowledged a few minutes after the verdict. (Like at least one juror in the first trial, I'm sure that some, perhaps all, jurors thought she outright lied.) And I'm willing to bet that many were especially offended that she tried to pin the blame on her kids. Think about it: she ratted out her own kids! If she really wanted to "protect" them, as she tearfully claimed on the witness stand, then why didn't she take the blame herself, and settle for a few thousand dollars early on?

3. The plaintiffs' lawyers connected with the jury.
Little of the post-trial commentary has mentioned the performance of the attorneys themselves. While I think the evidence was the primary driver of the verdict, the role of the attorneys does deserve mention. In sum, I think the plaintiffs' attorneys simply connected better with the jury than did their counterparts on the defense team.

Tim Reynolds, the labels' lead attorney, was not flashy or dramatic, but he was very effective. His delivery was straightforward and came off as both knowledgeable and believable. I thought Reynolds' cross-examination of Thomas-Rasset did an excellent job of pointing out the numerous holes and contradictions in her testimony, without appearing overly harsh or badgering -- which took real finesse, as it came just minutes after Thomas-Rasset cried on the stand as she maintained that her main goal was to protect her kids from the "wolves" of the recording industry. (At the time, I thought some jurors may well have bought her story.) An overly-aggressive cross could have led jurors to sympathize with her, but Reynolds avoided that, striking just the right tone. His co-counsel Matt Oppenheim -- portrayed in the fever swamps of the RIAA-hating blogs as some sort of secretive and nefarious Keyser Söze-like figure -- was completely out in the open, and skillfully walked several of the plaintiffs' witnesses through highly technical evidence, making it (mostly, I think) understandable to lay jurors, one of whom had never even used the Internet. Bottom line: the jurors appeared to like and connect with both Reynolds and Oppenheim. (Back in the fever swamps, Reynolds and Oppenheim are portrayed as the two most incompetent, unethical, and downright evil attorneys on earth. "[B]ad lawyers and bad human beings...a disgrace to the legal profession," in the charming words of Ray Beckerman, proprietor of Recording Industry vs. The People. Search here and here for more tastes of the bile. I think any fair-minded person, on any side of the copyright debate, who actually sat through this trial, would acknowledge the falsity of these rancid views.)

As for the defense team, I first want to acknowledge, and pay my respects to, the huge task they faced as they took on the case, pro bono, less than a month before trial. Attorneys usually have many months, often years, to prepare for trial, and both lead counsel Kiwi Camara and his partner Joe Sibley did a remarkable job in getting up to speed. That said, I simply don't feel that they connected with the jury. Camara, who graduated from Harvard Law School at age 19, and turned 25 in the middle of trial, is undoubtedly brilliant. He recited case law, statutes, and citations to the record off the top of his head, without stumbling. (To hear Camara in action, listen to this recording of him arguing before the Fifth Circuit. He's very good.) But...I never got the sense that he connected with this jury of ordinary Minnesotans, few of whom had graduated from four-year colleges. His mannerisms and persona -- everything from his diction, to his pocket handkerchief in his suit, to his elaborate hand gestures as he spoke, and what I perceived as the perpetual smirk or grin he wore as he sat at the end of counsel table, often directly facing the jury -- made him seem at times a character from a different, long-ago age, to whom I suspect few jurors could relate. (This stuff is superficial, but it matters.) And his frequent interruptions of witnesses and opposing counsel, which earned him repeated rebukes from the judge, surely did not go unnoticed by jurors.

Sibley's demeanor was much different. A street-fighter, he seemed always angry, sneering or scowling or snarling at the plaintiffs' witnesses, and indeed their entire case. Sibley was effective at times, scoring some points on cross and convincing the judge that Reynolds had committed a serious transgression by failing to disclose certain information about Jacobson's testimony. But the contrast with Reynolds' mild-mannered, everyman delivery was striking, and I think didn't play as well with the jury.

***

Again, all of the above is my best guess as to why the jury arrived at its decision, based on my having sat through all four days of testimony and argument. We'll never know for sure unless one of the jurors decides to come forward. In case any of them are reading this, I'm all ears: copyrightsandcampaigns@gmail.com.