Sunday, July 12, 2009

Debunking Team Tenenbaum's 'seven songs' myth: documents show defense on notice of 30 songs since October 2008

Last Friday, Team Tenenbaum went on a PR blitz, propagandizing that the record labels had, just weeks before trial, suddenly increased the number of songs they would pursue at trial from seven to 30.

But the defense team's account of the "30 songs" issue is indisputably false. The documents I describe and link to below demonstrate beyond doubt that the plaintiffs informed the defense which 30 songs (or 31, as I'll explain) they intended to pursue at trial on October 28, 2008 -- more than eight months before the defense now claims they learned of the 30. And additional documents listing the 30 (or 31) songs at issue were repeatedly served on Tenenbaum between the fall of 2008 and now. Either the defense knew their July 10 account of a supposed sudden increase from seven to 30 was false, and gave it anyway, or they haven't been reading the papers the plaintiffs have been serving on them over the past eight months. Neither possibility speaks well of their effort.

Here's the timeline, with relevant documents:

August 7, 2007. Plaintiffs file their complaint. The complaint identifies seven specific songs in Exhibit A as well as over 800 more in Exhibit B (here, here, here, here, here, here, and here).

October 28, 2008. Plaintiffs serve their Supplemental Disclosure Statement. This document includes a "Second Amended Exhibit A," which includes five songs (reduced from the original seven), as well as "Amended Schedule 1," which lists 26 songs -- for a total of 31 songs. Footnote 1 of the Supplemental Disclosure Statement leaves no doubt as to the significance of the songs listed in Second Amended Exhibit A and Amended Schedule 1:
Plaintiffs are hereby giving notice that they intend to pursue liability for the recordings included both in Plaintiffs' Second Amended Exhibit A to the Complaint and Amended Schedule 1, which are a subset of recordings found on Exhibit B to the Complaint, that are owned and/or exclusively licensed by Plaintiffs, and that Defendant downloaded and/or distributed in violation of the Copyright Act.
And if that wasn't clear enough, Plaintiffs' counsel Eve Burton spelled it out explicitly to Tenenbaum counsel Charles Nesson in her cover email:
Attached please find Plaintiffs' Supplemental Disclosures. I have also included a Second Amended Exhibit A and Amended Schedule 1, which together are the recordings Plaintiffs intend to pursue at trial.
November 13, 2008. Plaintiffs serve their Proposed Pretrial Order. On page 3, Plaintiffs reference the "31 sound recordings at issue in this case." See also id. at 2 (referencing "thirty-one (31) sound recordings").

June 3, 2009. Plaintiffs serve another Supplemental Disclosure Statement. Footnote 1 makes explicit once again that Plaintiffs are pursuing claims on the amended versions of Exhibit A and Schedule 1 -- the same 31 songs listed with the disclosures served Oct. 28, 2008.

June 29, 2009. The parties appear before Judge Gertner for a hearing on various matters. Several times Nesson refers to "seven songs." Plaintiffs' attorney Daniel Cloherty corrects the record:
Cloherty: Mr. Nesson sort of repeatedly suggested to the Court that there's seven songs at issue.

The Court: There's 800, right?

Cloherty: It's far more [than seven]. We've given him notice, I think there's 30 specific songs that we'll be proving up, but I don't want the Court to think that it's somehow only seven songs, so I just wanted to clarify that.
June 29, 2009. Plaintiffs serve yet another Supplemental Disclosure Statement. Again, Footnote 1 makes explicit that Plaintiffs are pursuing claims on the amended versions of Exhibit A and Schedule 1. Schedule 1 has been amended since the Oct. 28, 2008 version, and now lists 25 instead of 26 songs, reflecting the removal of the Smashing Pumpkins' "Bullet with Butterfly Wings." The total number of songs is now 30.

July 8, 2009
. Tenenbaum is deposed for the second time. According to Tenenbaum (I haven't seen an actual transcript), the following exchange occurred, in which Nesson professes not to know about the 30 songs:

They showed the list very matter of factly at my deposition. Nesson says something like “…7 songs…” They say, “Actually, we’re up to 30.” Nesson replies, “Since when?”

Eve [Burton]’s verbatim reply: “You should read the documents we’ve been filing.”

July 10, 2009. Team Tenenbaum publicizes the supposed revelation that the Plaintiffs have just upped the number of songs they are pursuing at trial from seven to 30. Tweeted the defense team:
RIAA has increased the number of songs they are suing joel for -- up to 30 from 7. That's potential damages of $4.5 million! #JFB
Tweeted Tenenbaum:
Looks like they added up to 30 songs at my deposition. I'm up to $4.5 million baby! #JFB
(emphasis added). Blogged the team:
We thought it was 7 songs....
But as the documents show, the defense mounted their PR blitz after having been told multiple times, in writing, over eight months, that the labels were pursuing 30 (or 31) songs. Not seven. Never seven. If they truly "thought it was 7 songs," then they were simply not reading the numerous documents I described and linked to above -- all of which they had in their possession.

Lastly, the defense's July 10 blog post suggests that the Plaintiffs were somehow obligated to amend their pleadings in order to pursue claims on songs beyond those listed in the original Exhibit A to the Complaint. That makes little sense, given that all of the songs plaintiffs are pursuing were listed in the exhibits filed with the original complaint in August 2007. In fact, a similar argument was rejected in another of the individual p2p cases. See Magistrate's Report and Recommendations of Dec. 12, 2006 in UMG v. Lindor (allowing Plaintiffs to pursue claims on 38 songs, which was more than the nine listed in that case's Exhibit A to the complaint) (adopted by district court Dec. 22, 2006).

All of which should put to rest the "seven songs" myth that the defense has promulgated. But I'm not counting on it.


  1. Not that you spent any amout of time pointing this out before. hm...

  2. Ben I thought you debunked this on Friday. This is a little tedious to rehash this point continually.

  3. @Anonymous: well, I didn't have all the relevant documents Friday (including the Oct. 28, 2008 disclosures, which prove beyond doubt that the defense was told about the 30 (or 31) songs 8 months before they now claim). Sorry that you find this "tedious."

  4. If it was "never 7", what was the original complaint? They didn't pull the "7" out for luck's sake.

  5. @Anonymous 3:28:

    As I explained on Friday, Exhibit A to the complaint had 7 songs, and Exhibit B had over 800 more. The complaint made clear that the plaintiffs were suing on BOTH the songs in Exhibit A and some portion of the songs in Exhibit B (which they later narrowed down). It was *never* the case that they were suing on only 7 songs; that was *always* a myth.

  6. Then how can "millions" be inaccurate if it was "always" hundreds of songs?

  7. @Anonymous 4:15:

    The Russian news report was inaccurate because it said 7 songs could lead to millions of damages. It can't. I've pointed this out numerous times already.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.