Monday, July 20, 2009

Tenenbaum files pretrial materials; Nesson says he 'missed' labels' disclosure of 30 songs

Joel Tenenbaum has filed his pretrial materials: pretrial memorandum, witness list, exhibit list, and proposed jury instructions.

Defendant's Pretrial Materials in Sony v. Tenenbaum

A few things to note:

Of the five fact witnesses the defense intends to call, I believe he will actually be permitted to call only two: Tenenbaum and his mother Judith. Cary Sherman and Mitch Glazier of the RIAA are beyond the court's subpoena power, as Judge Gertner has already held. And she has also determined that ethnomusicologist Wayne Marshall (Nesson's son-in-law) may not testify as an expert (though there is a pending motion for reconsideration). Tenenbaum now lists him as a fact witness, but I have no idea what personal knowledge of the facts of this case he allegedly possesses.

Relatedly, Tenenbaum lists Harvard Business School professor Felix Oberholzer-Gee as an expert witness. Oberholzer-Gee has written about the economic effects of p2p, but he was not disclosed by the court-ordered deadline, which Tenenbaum candidly acknowledges. Judge Gertner wouldn't allow Tenenbaum to add Marshall late; I can't imagine her allowing the even more tardy disclosure of Oberholzer-Gee.

Lastly, Tenenbaum's proposed jury instructions ... are not really jury instructions. They're simply more unsupported argument and assertion, and his continued insistence that the plaintiffs have the burden of disproving fair use is flat wrong, under binding Supreme Court precedent. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 590 (1994) ("Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.").

And Tenenbaum's "instruction" that attempts to limit the labels to recovery to only five songs is beyond absurd. Tenenbaum's counsel Charles Nesson now says he "missed" that the labels informed him that they were pursuing 30 songs last October because this fact was "buried in a footnote." But the list of the 30 songs was included in full-page exhibits, which were repeatedly served on him. And the complaint that these disclosures were "unfiled and therefore not publicly reviewed" is silly. They were served on Nesson, so the significance of whether the public saw them is beyond me. He has no excuse for not reading them.


  1. Read the brief. It was included in a footnote without amending their brief.

  2. @Anonymous 7:45:

    I don't know what you're talking about. The list of the 30 songs (actually 31) was included as attachments to the 10-28-08 disclosures:

  3. Yeah, a footnote on page 3 says: Plaintiffs are hereby giving notice that they intend to pursue liability... Never amended the complaint. All backdoor tricks.

  4. @Anonymous 8:32:

    All 30 songs (plus over 800 more) were listed in exhibits to the original complaint. The total was reduced to 31 on 10-28-08 not just in a footnote, but on full-page documents. There were no tricks, and no need to amend the complaint.

  5. This guy is an evidence professor? The curtain has been opulled back and it has been revealed that the wizard is nothing but a sad old man stomping his foot and insisting that he is great and powerful.

  6. Anonymous 7:45/8:32 -

    I think you should read the documents a little more closely. There is no need for plaintiffs to amend their complaint because the complaint contains more than sufficient notice as to the songs potentially at issue in the litigation.

    Paragraph 11 of Count 1 reads, inter alia:

    "The Copyrighted Recordings include but are not limited to each of the copyrighted recordings listed in Exhibit A..."

    It goes on to say:

    "In addition to the sound recordings listed on Exhibit A, Copyrighted Recordings also include certain of the sound recordings listed on Exhibit B which are owned by or exclusively licensed to one or more of the Plaintiffs..."

  7. Why didn't Charlie get Oberholzer-Gee lined up eons ago? He's right there at Harvard Business School and everyone interested in this area knows about his study on file sharing:

    Note what Charlie says:

    "* Defendant cannot currently confirm Prof. Oberholzer-Gee as an expert but intends to call him if logistics and the Court allow. I know this is late beyond set limits but he is the best on the subject."

  8. Oberholzer-Gee may be a rebuttal expert--was there a separate deadline for identifying those? Nesson seems to concede that whatever the deadline is, it's passed. Also, AFAIK there's been no report.

    It seems that the defense wants to have Marshall present some sort of demonstration on music filesharing networks. That may be the argument for getting him in as a fact witness, although that still seems somewhat dodgy to me.

  9. Is this guy really serious? The jury should take into account the plaintiffs' "assumption of risk" by releasing materials into an "environment in which it is likely to be copied" !?! Their "contribution" by marketing the materials to make them more attractive to illegal copying?

    This guy is lawyer? A law professor at Harvard? Tenure really is worth something. I wonder if he was like that when he was on Daubert. Or was it one of his colleagues that litigated it while he was just the crazy geek they tried to hold back, or is he just going wacky in old age?

    A first year law student at a third tier school could tell that there's no legal foundation for applying common law tort defenses to a federal copyright infringement case. What a poorly drafted, amateurish pleading!


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.