Friday, July 24, 2009

Gertner: Oberholzer-Gee won't testify as expert; labels may proceed on 30 songs; Marshall may demonstrate, but not opine

In the Joel Tenenbaum case, Judge Nancy Gertner has issued orders granting plaintiffs' motion to exclude Felix Oberholzer-Gee as a defense expert, and making clear that the labels may pursue claims for infringement on the 30 works they identified to the defense back in October 2008:
Judge Nancy Gertner: Electronic ORDER entered granting [896] Motion in Limine with respect to Felix Oberholzer-Gee, who has been proposed as an expert only days before trial without any expert report offered whatsoever. (Gertner, Nancy)

Judge Nancy Gertner: Electronic ORDER entered. The Defendant argues in his proposed jury instructions that the Plaintiffs should be limited to proving infringement of 5 recordings at trial, listed in Exhibit A to the Complaint, rather than the 30 songs for which they now intend to show copyright violations at trial, the remainder of which appeared in Exhibit B. While ordinarily the Court does not address jury instructions at the outset of the case, this issue is different since it may bear on defendants overall strategy. Defendant does not suggest that the Plaintiffs were required to formally amend the Complaint (beyond noting the songs in Exhibit B to the complaint). Nor does he deny that the Defendant received notice of the Plaintiffs' intent to proceed on these 30 recordings via an amended Rule 26 disclosure as early as October 2008. Counsel simply says that he "missed" the disclosure, that it was not publicly reviewable (because it was part of discovery exchanged between the parties as the Rules permit) and that the Plaintiffs should not be permitted to pick the number of infringements they want to prove. This objection simply does not provide a basis for barring claims of which the Defendant had notice and which are appropriate for trial given the facts and allegations now before the Court. Alternatively, Tenenbaum suggests that, if anything, he should be found liable for only one act of infringement because his "non-commercial" file-sharing constitutes a single course of conduct subjecting him, at most, to a single penalty regardless of how many copyrighted works he shared or over what period. This interpretation is not supported by the language of 17 U.S.C. 504(c)(1). As Defendant concedes, it reads the law's clear provision for penalties "with respect to any one work" out of the statute altogether, in order to satisfy the Defendant's sense of "logic" and "proportion." Id. While the Court may agree that the copyright law is gravely out of proportion, the Defendant's logic is not Congress' logic. Trial will go forward on the 30 sound recordings for which the Plaintiffs provided notice to the Defendant.(Gertner, Nancy)
Judge Gertner also reaffirmed that Brandeis University ethnomusicologist Wayne Marshall (Tenenbaum counsel Charles Nesson's son-in-law) will not be permitted to testify as an expert, though she reserved judgment whether he will be permitted to testify as a fact witness and said he may help run courtroom demonstrations:
Judge Nancy Gertner: Electronic ORDER entered. Defendant's Motion for Reconsideration of the Court's ruling excluding Wayne Marshall as an expert, made orally at Monday's conference, is DENIED. Marshall was proposed as an expert on June 29, 2009 -- months after the Defendant first proposed adding his fair use defense (April 15), a month after the original deadline for expert disclosures (May 30), weeks after the Court allowed addition of the fair use defense (June 15), and a week after the strict deadline for submission of expert reports (June 22). See June 16, 2009 Scheduling Order (setting strict schedule for fair use discovery and cautioning Defendant that further failures to meet the Court's time-limits could cause him to forfeit crucial elements of his case). The Defendant's only explanation for his delay is that the proposed expert did not realize earlier how his expertise would be relevant to this case. As before, this reason does not warrant an exception to the extremely tight calendar dictated by the July 27 trial date, agreed to by both sides. Marshall is also listed as a "fact" witness in the pretrial memorandum, and as someone who will be demonstrating file-sharing to the jury. The Court will allow Marshall to demonstrate the technology. As to any "fact" testimony beyond that demonstration, the Court will reserve judgment. (Gertner, Nancy)

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