Friday, June 26, 2009

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.


  1. from whom did you learn that joel was going to venice?

  2. @Prof. Nesson:

    The Venice trip is mentioned on page 2 of the plaintiffs' Motion for Hearing, which I linked to in the above post:

  3. Had you bothered to do a little more than Google me and cut'n'paste from my Brandeis bio, you would have seen that my research is centrally concerned with notions of ownership and the effects of copyright on musical practice. I have published extensively on these issues, including in my dissertation on hip-hop and reggae (in which issues of allusive re-use are crucial), in my master's thesis on sample-based hip-hop, and in such peer-reviewed journal articles as "Giving Up Hip-hop's Firstborn" and "The Riddim Method." Apparently you overlooked that I taught a class at Brandeis called "Digital Pop: From Hip-hop to Mashup" or that I was recently awarded a Mellon Fellowship at MIT to pursue a research project on global internet music culture.

    Please consult my c.v. and the "word" page on my website to edify yourself as to the "relevance" of my testimony, all procedural and familial issues aside.

    The question is not of "indulgence" here but of fairness of trial. Understanding Joel's allegedly infringing acts in social and cultural context -- the work of ethnomusicology -- seems to me an imperative consideration for a jury of his peers.

  4. @W&W (who I understand to be Mr. Marshall):

    It's impossible to fully evaluate the relevance of your proposed testimony, and the issue of whether your background and expertise qualifies you to testify in this case, without knowing what your proposed testimony and opinions actually are. Please feel free to send me your expert disclosure, so that I (and other readers of this blog) can evaluate it. (The document is not secret, since the plaintiffs have it.)

    Frankly, "[u]nderstanding Joel's allegedly infringing acts in social and cultural context" is not what this case is about. That subject is appropriate for academic discussion, or perhaps at a Congressional hearing on whether to reform copyright laws. But this is a *legal* case about whether the defendant violated the plaintiffs' rights. It is no defense to his conceded infringing acts that some may believe that they were somehow appropriate within a particular "social and cultural context."

    The "fairness of trial" includes the requirement that both sides abide by the rules of civil procedure and the schedule set by Judge Gertner. You were apparently disclosed as a proposed expert just last week -- almost 3 months after the deadline. While I hesitate to predict what Judge Gertner will do, she appears to have reached the end of her patience with Prof. Nesson's tactics, and I would be very surprised if she permitted this extremely late addition of a proposed expert.

  5. The only possible pertinency of this "expert" testimony I can forsee is if defendant's counsel is somehow trying to formulate additional factors beyond the four enunmerated in the fair use section of Title 17. For at least the reasons you note above, I rather doubt counsel will be met with a warm reception by the trial judge. I have a difficult time envisioning other factors coming into play in a fair use defense given the absence of any acts by the defendant other than the "naked" copying/distribution of musical works.

  6. I'll leave the strategy to Charlie and his legal team. I must admit, however, that I find all the emphasis on procedure in the commentary on this site -- as well as the rejoinders by the RIAA lawyers -- to, well, miss the forest for the trees. That's a very lawyerly response, I suppose. I don't find it terribly compelling myself.

    Is w&w the same entity as Mr. Marshall? The world may never know...

    Oh, btw, arstecnica has a post up that better grasps my potential relevance. They did their homework, I guess. Whether the judge thinks so is, of course, another matter entirely.

    As for my testimony, i&i will be posting it to my blogg shortly. Had to finish up a Michael Jackson rememberance and remix first, tho-

  7. As a response to w&W, I will focus on his statements on "procedure" as "miss[ing] the forest for the trees." I would say the exact opposite is true. Procedures, especially the ones that Mr. Sheffner is discussing, are put in place because if people were allowed to sandbag their opponents on the eve of trial, it would literally crumble our judicial system. I would say that ignoring those procedures (as well as Court scheduling Orders) on the grounds that the defense of this one case is more important than the fair and just running of our legal system is missing the forest for a single tree.
    In addition, I find it particularly ironic that in Thomas and Tenenbaum, the defendants have tried to come up with every possible argument to exclude evidence, while declaring that they can put forward defenses and expert reports whenever they see fit in contradiction to the rules.
    Frankly, if people actually paid attention to the filings, orders, trial(s), etc. in these cases, the p.r. of all this might have a much different spin.

  8. I think the PR spin is still a little hard to guage myself. Sure, words like 'crazy' and 'reckless' get thrown around, but I think there's an old saying about something being so crazy it just might work. (And, knowing Charlie quite well, I can attest that he is fully sane, if operating on a plane all his own.)

    And I totally understand your point wrt to "sandbagging" but I don't think that's what's happening right now. The trial is still nearly a month away, and the Defendant's team has been fairly consumed with all sorts of procedural issues which it finds crucial to its argument.

    But we won't be able to say much about any of this until we have some hindsight.

  9. Understanding whether rights were violated is definitely part of W&W's argument.

    Regarding the suggestion that the rights of users are "the four enunmerated in the fair use section of Title 17. "

    these are, in fact, not intended to be exhaustive (section 17 says consideration "shall include" those factors, not that it must only include them). Judges and lawyers like to talk about the 4 factors as if they are definitive because that is a faster and handier way to come to decisions. But fast and handy is not necessarily best.

    Since currently many agree that copyright law is not working very well, it isn't beyond the bounds of rationality that people put forth new arguments and evidence about the scope and meaning of things like fair use. If those arguments are informed by the opinions and research-supported conclusions of people who study music's value and meaning to people who use it, so much the better.


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