Joel Tenenbaum still 'sharing' copyrighted music

Tonight Joel Tenenbaum tweeted:


The link is to a page containing links to .mp3s of songs that Tenenbaum himself performed at a March 27, 2006 piano recital at Goucher College:

Most of the songs Tenenbaum performed are by long-dead composers such as Bach, Beethoven, and Chopin. Their compositions are in the public domain, and Tenenbaum is free to perform, record, and "share" them all he wants. Another of the songs is called "Pop Songs without Words No. 2," composed by Jeffrey Chappell. Chappell is Director of Jazz Studies at Goucher (from which Tenenbaum graduated), and I'll assume he doesn't mind Tenenbaum posting his song.

But the last song on Tenenbaum's list of .mp3s is "The Piano Man," written and composed by Billy Joel. That composition is owned by Billy Joel's publishing company "Joelsongs":

Generally speaking, unless one has a proper license, making a recording based on a composition, and posting such a recording to the Internet, would infringe the composer's copyright. I'm not aware of any publisher ever suing an individual in such circumstances. (Though publishers certainly don't consent to unlicensed Internet distribution of their works; publishers were active plaintiffs in the Grokster litigation.) And I have no idea how Billy Joel would feel about this use of his song by Tenenbaum; perhaps he'd be flattered and thrilled. (Though note that Joelsongs is listed c/o Gelfand, Rennert & Feldman LLP, a firm that specializes in tracking down missing royalties.)

But if you were Joel Tenenbaum, having just been ordered to pay $675,000 for your infringements, wouldn't you be making sure you were purer than Caesar's wife on copyright issues, rather than tweeting about the music you're still "sharing"?

Tenenbaum re-writes history: RIAA now not such 'rotten bastards'; 'lies' no longer a 'myth'

In a Q & A posted August 2, the Sunday after last Friday's verdict, Joel Tenenbaum had this to say about his victorious opponents:

Q: The RIAA are a bunch of rotten bastards.
A: I know.

Today, where that couplet once appeared, we now have this:
Also on August 2, Tenenbaum published a post purporting to correct various "myths" in the media coverage of his case. Among the alleged "myths" was that Tenenbaum "lied" in his written discovery responses and at his first deposition. This, despite the fact that the following exchange occurred while Tenenbaum was on the witness stand at trial, under oath:

Nesson: Why did you lie at that point?

Tenenbaum: It was kind of something I rushed through.

Well, today, that Tenenbaum lied is no longer a "myth," but merely a statement meriting a "clarification":

And so we asymptotically approach the truth...

Why using the courts to 'teach a lesson' to Joel Tenenbaum -- and other infringers -- is perfectly OK

Team Tenenbaum's PR push continues unabated. While I'm highly skeptical that Tenenbaum's defiant, unrepentant attitude will help his cause when he appears before Judge Gertner to ask for a reduction in the $675,000 jury award against him -- indeed, I predict it will backfire -- it's a free country, and his team can bray to the (increasingly skeptical) media all it wants. But see International Korwin Corp. v. Kowalczyk, 665 F. Supp. 652, 659 (N.D. Ill. 1987) ("[D]efendants must not be able to sneer in the face of copyright owners and copyright laws").

But let's keep one thing clear: Tenenbaum's arguments bear scant resemblance to the law as currently written. I want to highlight one example, from a British publication called Bad Idea. In an interview, Tenenbaum defense team member and chief flak Debbie Rosenbaum tells Bad Idea:

The RIAA loses money in its fierce litigation campaign against individual users, and they are making an example out of Joel in order to quote "teach other people a lesson." That is an inappropriate use of the court system and we are disappointed in the outcome.

(my emphasis). Rosenbaum is entitled to her personal opinion as to what is an "[]appropriate use of the court system." But let there be no mistake: the law is crystal clear that teaching both Joel Tenenbaum and other potential infringers a lesson is an entirely appropriate use of the copyright laws, and particularly their statutory damages provisions.

"Teaching a lesson" is simply a colloquial term for what lawyers call "deterrence." And deterrence is a perfectly legitimate aim of statutory damages. Don't believe me? Let's go to the case law. See, e.g., F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233 (1952) (“[t]he statutory rule, formulated after long experience, not merely compels restitution of profit and reparation for injury but also is designed to discourage wrongful conduct.”); Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (range of statutory damage designed to deter willful infringement); Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 113-14 (2d Cir. 2001) (statutory damages "meant to discourage wrongful conduct."); Disney Enters., Inc. v Delane, 446 F. Supp. 2d 402 (D. Md. 2006) (statutory damages necessary to deter future infringement). And there are many, many more.

And in the legislative history of the most recent revision to the statutory damages provisions of the Copyright Act, the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Congress highlighted the importance of statutory damages as a means to achieve "a significant deterrent effect on copyright infringement. See Report of the House Committee on the Judiciary (“House Report”), H.R. Rep. No. 106-216, at 3 (1999); see also Patry on Copyright § 22:100 n.11 ("[A] substantial award of statutory damages for willful infringement is appropriate in order to deter bad actors."); id. at § 22:174 ("[W]hile certainly serving to provide some compensation for defendant's infringement, statutory damages also to serve a deterrent purpose, discouraging wrongful conduct by imposing a high enough penalty so that defendants will realize that it is less expensive to comply with the law than to violate it.").

And, should this case ever reach the Supreme Court, I don't expect Tenenbaum's argument that it's inappropriate for the record labels to use the courts to "teach him a lesson" to gain much traction. The soon-to-be newest member knows a thing or two about statutory damages. And, as a district judge, she even once increased an award of statutory damages recommended by a magistrate judge, on the grounds that it didn't teach a strong enough lesson to the defendant. See Top Rank, Inc. v. Allerton Lounge, Inc., 1998 WL 35152791 (S.D.N.Y.,1998) (Sotomayor, J.) ("The Court agrees with the defendants that statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff. The Court finds, accordingly, the recommended awards in the Report to be inadequate."); see also Peer Int'l. Corp. v. Luna Records, Inc., 887 F.Supp. 560 (S.D.N.Y. 1996) (Sotomayor, J.) ("Congress's provision allowing for a greater award where willful infringements are found, however, indicates that statutory damages serve the dual purposes of the Copyright Act-compensation and deterrence.... Because of defendant Abel De Luna's willful infringement of plaintiffs' copyrights and his continued infringement after the initiation of this action, I find that substantial statutory damages are warranted to deter him from future misconduct.").

"[C]ontinued infringement after the initiation of this action" -- sound familiar?

Slate: Piracy may lead to apocalypse!

As part of its years-long campaign to ruin August, Slate has decided to present its readers with "144 potential causes of America's future death." All 144 are listed here for your convenience. Or you can play the nifty "Choose your own apocalypse" game.

I must say, I'm impressed that Slate has identified "media piracy" as End-of-America scenario #22, right between "end of English" and "decadence" (18 places below "loose nukes," though 30 above killer asteroid!).

So to my friends in the anti-piracy world: keep up your hard work. The nation's very survival is at stake...

The Tenenbaum verdict form: debunking the 'mistake' theory of the damages award

When I heard the clerk announce that the jury in the Joel Tenenbaum case had awarded $22,500 per infringed work, I immediately thought: "Uh oh. Did they screw up? Did they really mean to award $22,500 total -- which happens to be the minimum statutory damages award of $750 per work, multiplied by the 30 works at issue?" (Others had similar thoughts.)

But my concerns were quickly put to rest. First, Judge Nancy Gertner clearly stated that the award was $22,500 per work, and asked the jury whether that was correct. The jury collectively responded, "Yes." Shortly afterwards, I spoke with one of the jurors. While I didn't ask him directly about the "mistake" theory (given the jury's response to Judge Gertner's inquiry, I no longer considered it plausible), it was clear from that conversation that the amount the jury intended to award was indeed $22,500 per work. For example, the juror mentioned that the final number was the result of "true compromise," i.e., higher than some people wanted, but lower than others' preference. Had the jury awarded the minimum of $750 per work, that would have represented a total victory/defeat -- not a "compromise."

But the strongest evidence that the jury did indeed intend to award $22,500 per work -- not $22,500 total -- comes from the verdict form itself. The form clearly indicates that the jury awarded $22,500 for each of the 30 separate songs.
Sony v. Joel Tenenbaum Verdict Form

And with that, I think we can put the "mistake" theory of the verdict to rest.

Set your VCRs (and TiVos): Tenenbaum goes primetime

In other Team Tenenbaum media appearances, here's an interview earlier today on WFMU with Tenenbaum counsel Charles Nesson (starts about 1:30:50 in). It's not exactly fair and balanced, but it's worth listening to for anyone who hasn't heard Nesson expound on the case in his own words.

UPDATE: Here's the transcript of Tenenbaum's appearance (along with the RIAA's Cara Duckworth) on Campbell Brown's show. Brown clearly did not buy Tenenbaum's "I support the artists" shtick:

BROWN: You listen to their music.

TENENBAUM: Absolutely.

BROWN: Don't you think they deserve to be compensated for it?

TENENBAUM: Oh, absolutely, Campbell. I've always held that artists deserve to be paid for their work. I -- I...

BROWN: And that's who you're stealing from.

TENENBAUM: Well, again, this -- this idea of stealing -- I think the -- the whole debate about file sharing as to whether or not it is beneficial or harmful and I don't even think it's necessarily the same amount of benefit for any given user. I think different users use file sharing different ways.

BROWN: But if you're not --

TENENBAUM: For example, if --

BROWN: Hold down a second. Because if you're not paying for it...

TENENBAUM: Right.

BROWN: ... how is that different? I don't understand.

Joel Tenenbaum, unrepentant

Posted today to the Joel Fights Back site:

Q: What did you do with 30 songs that got you nailed?
A: I downloaded them and shared them on Kazaa. They also proved in court (because I admitted it) that I used Limewire, iMesh, Morpheus, Napster, and Audiogalaxy, but it doesn’t matter.

***

Q: The RIAA are a bunch of rotten bastards.

A: I know.

Q: Why did you share them? Why didn’t you just enjoy them yourself?!

A: Art is meant to be shared....

Q: Come on, don’t you want the artists to be paid?

A: More than anything. They take the time to learn an instrument, spend the money to get the equipment, and then they pour themselves so completely into their expression. The artists are what matter and 2/3 of them don’t see file sharing as a threat. Just read what Trent Reznor of Nine Inch Nails has said on this.

I'm very curious as to the source of the "2/3" statistic. And if Tenenbaum wanted "more than anything" that the artists get paid, why didn't he buy the music, instead of taking it for free?

Tenenbaum also says in the Q&A, "The RIAA and the Judge in this case succeeded in convincing the jury that the DMCA act of 1999 (http://www.copyright.gov/title17/92chap5.html) should be applied here," and references the range of statutory damages. The DMCA was enacted in 1998, and it had absolutely nothing to do with this case. I believe he meant to refer to the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which did increase both the upper and lower limits of the statutory damages range. However, given the jury's finding of willful infringement, their award of $22,500 could have been exactly the same prior to that law's passage.

Tenenbaum will likely soon be back before Judge Gertner, asking her to reduce the jury's award of $675,000 against him. Expressing precisely zero regret for his illegal acts -- indeed, bragging about them -- and referring to the plaintiffs' trade association as "rotten bastards," will not help his cause. Very, very bad move.

The Tenenbaum case Crystal Ball Award goes to...

It's a tie:

Harvard Law School professor Terry Fisher:

I fear that failure to address the holdings (or dicta) of those [fair use] decisions will give rise to a directed verdict or summary judgment against you — and you will never get a chance to make your case to the jury.

And Harvard law student and Joel Tenenbaum defense team member Ray Bilderbeck:

[T]he very novel [fair use] argument that we intend to raise at trial - an argument which has no real basis in case law or moderate academic scholarship - is a blunder that could have very serious consequences.

Both quotations are from the infamous March 29, 2009 email chain in which Tenenbaum's potential experts warned his counsel Charles Nesson that the fair use defense was a loser. Of course, Judge Nancy Gertner did grant summary judgment for the plaintiffs on Tenenbaum's fair use defense, and then directed a verdict in plaintiffs' favor on liability. The jury returned a verdict of $675,000. That, we can all agree, is a "very serious consequence[]."

Beckerman: Don't help Tenenbaum pay the $675,000 award

Joel Tenenbaum is soliciting donations to help pay the $675,000 award a Boston jury ordered him to pay for infringing the major record labels' copyrights in 30 sound recordings. An intra-anti-RIAA war ensues...

UPDATE: Tenenbaum says the donations will be used to defer defense costs, not to pay the judgment.

An interview with a Tenenbaum juror

Shortly after Friday's verdict in the Joel Tenenbaum case, I had the chance to speak with Dr. Donald Moran, one of the jurors who ordered the BU grad student to pay $675,000 for infringing 30 of the record labels' songs by uploading and "sharing" them on the KaZaA peer-to-peer network. Moran is a 40-ish physician, a specialist in internal medicine at a Cambridge hospital who also teaches at Harvard Medical School. He was reluctant to discuss the jury's deliberations in any detail, but was willing to share his impression of various of the players and issues. I can't say whether Moran's views are typical of the other jurors, but I found his impressions quite interesting.

On the jury deliberations:

We worked in a spirit of true compromise. We worked very well together. It wasn't easy to get to a number.... The jurors were very fair, very diligent, very careful. It gave me confidence we made the right decision.

On Joel Tenenbaum:

He was a very likable young man. It would be very interesting to talk to him personally.

What did he think of Tenenbaum's conduct? Did he find it morally culpable, or simply typical behavior of people in the defendant's generation?

There was an element of culpability. But I also recognize there are a lot of people in the same boat.

What does he think about the record labels' litigation campaign against individual peer-to-peer users?

We wish there was another way that all parties could be satisfied. But this is a business, and they have the right to enforce their rights.

Did Tenenbaum's admitted lying in written discovery responses and at his first deposition play a significant role in the jury's award of damages?

I don't think it had much impact. Our verdict was based on the evidence already provided. The plaintiffs' evidence was very comprehensive.

What was his impression of Tenenbaum counsel Charles Nesson?

He was very interesting. It would be fun to sit down and talk with him. There was a minefield of facts he had to negotiate. He approached it in the best way he could. He was very persuasive.

Oy Tenenbaum! RIAA wins $675,000, or $22,500 per song

Here's my post-verdict piece, cross-posted from Ars Technica:

A Boston federal jury has ordered Joel Tenenbaum to pay a total of $675,000—$22,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the $222,000 award in the first Jammie Thomas-Rasset trial than the $1.92 million figure from the second trial.

The verdict came down at late Friday afternoon after about three and a half hours of deliberation.

When asked about the size of the verdict, Tenenbaum's attorney and Harvard Law School professor Charles Nesson told Ars that "it's a bankrupting award." He also felt things might have been different had they been allowed to argue fair use. "We were not allowed to speak to fairness," he told Ars. "I thought we had pretty damn good arguments on fair use."

"I'm disappointed, but not surprised, but I'm thankful that it wasn't much bigger, that it wasn't millions," Tenenbaum told Ars after the verdict was announced. We asked him if he regrets not settling earlier on in the process. "Ask me in a couple of months," Tenenbaum replied. He also told Ars that he doesn't have the ability to pay the judgment and said that he'd be filing for bankruptcy if the award stands. Although the jury found that he willfully infringed on the copyrights in question, Tenenbaum said he was "not displeased with the jury considering how the trial went."

What about the fact that the damages could have been much worse, as high as $4.5 million? "That to me sends a message that [the jury] considered [my] side legitimately," he replied. He was also evasive when asked if he regrets downloading music for free. "That's really a loaded question," he replied. "There are so many things that could have been different."

The RIAA was pleased with the verdict. "We are grateful for the jury’s service and their recognition of the impact of illegal downloading on the music community," the RIAA said in a statement. "We appreciate that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work. From the beginning that’s what this case has been about. We only wish he had done so sooner rather than lie about his illegal behavior."

The trial was an almost entirely one-sided affair. Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004. A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008.

And when he took the stand on Thursday, Tenenbaum admitted it all, including the fact that he had “lied” in his written discovery responses and at his first deposition in September 2008.

Tenenbaum’s admissions were so clear-cut, and so damning, that Judge Gertner—who had recruited Nesson to represent the formerly lawyer-less 25-year-old—took the basic issue of infringement away from the jury, determining that no reasonable jury could find for Tenenbaum on that issue. The jury of five men and five women, all white and all from the Boston suburbs, were left only to determine the issue of willfulness and damages.

Tenenbaum is only the second of approximately 18,000 individuals targeted by the labels to have gone to trial, and the second to lose. In June of this year, a Minnesota jury ordered Jammie Thomas-Rasset to pay $80,000 for infringing each of 24 songs, totaling $1.92 million. Last December, the labels announced that they were no longer initiating new cases against individual peer-to-peer users. However, they said they would see through to the end those cases already in the litigation pipeline. According to the labels’ attorneys, there remain about 100 cases pending where the defendant has filed an answer, about a dozen of which are being actively litigated in the discovery stage.

The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum’s counsel, Harvard Law School professor, who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending.

Tenenbaum’s case was dismantled piece-by-piece by a series of adverse rulings over the past several months. Judge Gertner dismissed his abuse-of-process claims against the plaintiffs and the Recording Industry Association of America; excluded four of his proposed expert witnesses and limited the scope of a fifth; and, in a coup de grace delivered less than eight hours before the start of trial, barred him from arguing fair use to the jury.

Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element.

Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.

Jury deliberating in Tenenbaum case; Nesson: 'Joel was addicted. He became addicted to free music with Napster.'

Joel Tenenbaum is a “hardcore, habitual, long-term, persistent infringer, who knew what he was doing was wrong and did it anyway,” recording industry attorney Timothy Reynolds argued to the jury who will determine how much the 25-year-old grad student will have to pay for his admitted use of peer-to-peer software to obtain music for free.

But it is “hard to imagine an infringer who is lower on th[e] scale [of culpability] than Joel,” countered his counsel, Harvard Law School professor Charles Nesson. “Let the punishment fit the crime.”

And Nesson made a blatant play for jury nullification, urging the jury to award damages on only one song among the 30 Tenenbaum has admitted infringing. “If you don’t fill in any of those boxes” for damages, “that’s totally within your power.” The plaintiffs strenuously objected -- pleas for nullification are strictly forbidden -- and a clearly angered Judge Nancy Gertner agreed, reminding the jurors of their obligation to follow the law.

With liability already decided in plaintiffs’ favor in an early-morning order by Judge Gertner, the focus of the case turned to willfulness (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights") and damages. The two issues are closely related. Under Section 504(c) of the Copyright Act, the jury may award statutory damages of between $750 and $30,000 per infringed song in the case of “regular” or non-willful infringement. If, however, the jury finds Tenenbaum’s infringement to be willful, the maximum it may award jumps five-fold, to $150,000 per song.

“There is no issue as to liability. There is no issue as to liability,” Judge Gertner repeated for emphasis.

Given the finding of liability, the jury must award at least the minimum of $750 per work, or $22,500 total for the 30 songs at issue. The maximum potential award is $150,000 multiplied by 30, or $4.5 million. At the first Jammie Thomas-Rassset trial, the jury awarded $9,250 per song; at her retrial in June of this year, a different jury awarded $80,000 for each of 24 songs, totaling $1.92 million.

As they did in the two Thomas-Rasset trials, Plaintiffs did not ask the jury to award a specific amount of damages within the statutory range. “How much in damages should be awarded here is your job,” said Reynolds, “and we leave it in your good hands.”

Reynolds and Nesson painted starkly contrasting pictures of Tenenbaum, who is on his way toward a Ph.D. in physics at Boston University.

To Reynolds, Tenenbaum was a repeat miscreant, who started using Napster in 1999, turned to numerous other peer-to-peer services when the last one got shut down, and continued his infringement despite multiple warnings -- including at least one from his own father -- that he should stop. “Did he stop? Did he even consider it? Not at all… He actually increased both the size and scope of his infringement,” said Reynolds, of the Denver-based Holme, Roberts & Owen.

But Tenenbaum couldn’t stop himself, said Nesson. “Joel was addicted. He became addicted to free music with Napster.” And he never intended to make money from his infringement, or to harm copyright owners. “His purpose was completely personal. No maliciousness. No intent to injure.”

Nesson conceded that Tenenbaum may have saved a small amount of money by downloading songs for free instead of paying for them. But he strenuously denied that Tenenbaum’s distribution to others caused any harm to the plaintiffs, given that many others were likely sharing the same songs. “There were many, many copies of these songs available,” said Nesson. “The fact that one more become available doesn’t change anything.”

But Reynolds pointed out that Tenenbaum admitted being the initial “seeder” of at least one file, an unreleased Deftones song that he recorded off a television performance and made available on KaZaA, and then publicized its availability in a Deftones fan forum. It’s “inconceivable” that no one downloaded that song from Tenenbaum, said Reynolds.

Judge Gertner then instructed the jury, and at 1:43 p.m., the five men and five women, all white and all from Boston's suburbs, were sent to eat their lunch and deliberate.

Plaintiffs win Tenenbaum case; court reconsiders Rule 50 ruling, grants directed verdict on copyright liability

The record label plaintiffs have won the Joel Tenenbaum case. Judge Nancy Gertner has reversed her ruling of last night, now granting the record label plaintiffs' Rule 50 motion on the issue of liability:

Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy)

This morning Tenenbaum may put on witnesses, the attorneys will conduct closing arguments, and Judge Gertner will instruct the jury. Deliberations (which will cover only willfulness and damages) could start mid-day.

Court leaves decisions on infringement and willfulness to jury; grants Rule 50 motion on copyright ownership

Late today Judge Gertner issued the following ruling on the plaintiffs' motion for a directed verdict under Rule 50:

Judge Nancy Gertner: Electronic ORDER entered with respect to Rule 50 motion: The Court will make required findings concerning copyright ownership, but leave all remaining issues -- infringement (reproduction and distribution), damages and willfulness -- for the jury, out of an abundance of caution. The Court does so in part because the statutory damages inquiry obliges the jury to consider some of the same issues as the infringement inquiry, i.e. the nature of the infringement. (Gertner, Nancy)

In other words, the jury will still decide the basic issue of whether Tenenbaum infringed the plaintiffs' copyrights (which he admitted today under oath), and whether he infringed willfully, which means infringed "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights." The jury will not have to decide copyright ownership (one of the two basic elements of an infringement claim); Tenenbaum doesn't dispute it.

Tenenbaum takes the stand: I used P2P and lied about it

Here's my recap of day four of the Joel Tenenbaum trial, cross-posted from Ars Technica:

Accused of sharing 30 songs on the Internet, Joel Tenenbaum today admitted his liability in a federal courtroom, then told the court he told a "lie" in his earlier sworn responses. The labels have moved for a directed verdict of copyright infringement, and look likely to get it.

***

“Joel Fights Back,” proclaims the website for Joel Tenenbaum, the Boston University grad student standing trial for copyright infringement this week in a federal courtroom. But today, when he took the stand at his closely watched copyright trial, he didn’t.

Instead, over and over, Tenenbaum admitted under oath that he used KaZaA, LimeWire, and other peer-to-peer software to download and distribute music to others unknown.

“This is me. I’m here to answer,” said Tenenbaum. “I used the computer. I uploaded and downloaded music. This is how it is. I did it,” he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.

“Are you admitting liability for all 30 sound recordings” on which the record labels brought suit, asked the plaintiffs’ attorney Tim Reynolds.

“Yes,” said Tenenbaum.

Tenenbaum then admitted that he “lied” in his written discovery responses, the ones in which he denied responsibility.

“Why did you lie at that point?” asked Tenenbaum’s attorney, Harvard Law School professor Charles Nesson. “It was kind of something I rushed through,” responded Tenenbaum. “It’s what seemed the best response to give.” At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.

A directed verdict?

Given Tenenbaum’s clear-cut admissions, plus the other evidence linking the defendant to the alleged infringement, plaintiffs moved at the end of their presentation for a directed verdict in their favor under Federal Rule of Civil Procedure 50 on the issues of copyright ownership, liability, and willfulness. Judge Nancy Gertner gave every indication that she will grant the motion as to ownership and liability, taking away from the jury the basic issue of whether Tenenbaum infringed the plaintiffs’ copyrights.

“For all intents and purposes, the ownership and liability issues have been conceded,” she said, suggesting wilfullness was a closer call. Judge Gertner promised a ruling on all three issues Friday morning. UPDATE: Tonight Judge Gertner, "out of an abundance of caution," denied the plaintiffs' motion for a directed verdict on the issues of liability and wilfullness, leaving them to be decided by the jury. She did grant their motion as to copyright ownership, which Tenenbaum never disputed.

During Tenenbaum’s testimony, plaintiffs’ attorney Tim Reynolds walked Tenenbaum methodically through the evidence, extracting scores of one, two, and three-word admissions that he did exactly what plaintiffs have accused him of doing.

“You used KaZaA to download music, right?”

“You used LimeWire to get music without paying for it, right?”

“Your goal was to obtain the maximum amount of music with the minimum amount of wasted effort, right?”

“Yes.” “I did.” “Yes, I did,” Tenenbaum said calmly, over and over and over, in response to Reynolds’ questions.

Tenenbaum admitted that the screenshots captured by MediaSentry in August 2004, showing over 800 song files in his KaZaA shared folder, were accurate representations of the contents of that folder.

He admitted that he listened to his copies of all 30 songs he is accused of downloading and distributing—negating Nesson's suggestion that some of them were actually fake files, “spoofs” put on peer-to-peer networks by copyright owners to frustrate users trying to obtain music for free.

And Tenenbaum accepted all of the conclusions of plaintiffs’ computer forensics expert, Dr. Douglas Jacobson, as true. “I trust he’s a competent professional,” said Tenenbaum.

Under cross-examination by his own attorney, Tenenbaum was more expansive. He recounted his long-time love of music and growing up in a family where all members played an instrument. “They forced us to play piano,” he said of his parents.

And Tenenbaum insisted he never had any intent to harm the record labels, and certainly not the artists themselves, for whom he expressed great affection.

Tenenbaum smiled broadly as he recounted the joy of first encountering Napster: “It was great… It was like this giant library in front of you with all sorts of songs... It’s all up there... It’s like the Google of music... You have this list of songs, and you can get them really easily.”

Did he consider whether it was legal? “I guess it wasn’t foremost in my mind... Now I’m thinking a lot more about whether it’s illegal," he replied.

Plaintiffs wrap things up

After Tenenbaum left the stand in the early afternoon, plaintiffs called Ron Wilcox, an attorney and long-time digital music executive now at Warner Music Group, who guided the jurors through the industry’s efforts to sell music on the Internet, from the early days of MusicNet and Pressplay, through iTunes, and to what he sees as an all-digital future.

“Our total focus and attention is on” digital distribution, said Wilcox, who was called to counter the defense’s suggestion that Tenenbaum’s use of peer-to-peer was justified by the labels’ alleged failure to provide legal alternatives. “There’s no fear of technology,” said Wilcox, who spent 25 years at Sony Music before joining Warner early this year. But the digital marketers are “always in a position of chasing free.”

Rounding out the day was Warner Music attorney Silda Palerm, who spent less than ten minutes on the stand confirming WMG’s ownership of such songs as Green Day’s “Minority,” which was found in Tenenbaum’s KaZaA shared folder.

With that, plaintiffs rested their case.

Defendants have said they intend to call to the stand Tenenbaum’s mother and Dutch computer scientist Johan Pouwelse. But it is unclear what purpose either of these witnesses would serve, given the concessions made by the defense today. In any event, Tenenbaum’s attorneys said they would finish their presentation by mid-morning Friday. Then, following closing arguments and jury instructions, the five men and five women of the jury will be sent off to deliberate.

The only tough issue left for the jury to decide will be damages, which could range from $750 per work up to $30,000 per work, or up to $150,000 per work if they find that Tenenbaum’s infringement was willful. In yet another blow to the defense, Judge Gertner said she will instruct the jury that “willful infringement is that committed with knowledge of or ‘reckless disregard’ for the plaintiffs' copyrights,” rejecting a heightened standard urged by Tenenbaum that would have required a showing of Tenenbaum’s intent to profit commercially.

Tenenbaum lawyer admits liability; damages now main issue

Here's my recap of day three of the Joel Tenenbaum trial, cross-posted from Ars Technica:

The second-ever P2P file-sharing case to go to trial has been anything but conventional, and today was no exception: one of Joel Tenenbaum's attorneys admitted in court that his client was liable for infringement. The real issue now appears to be the amount of damages.

***

Its been clear for some time that Joel Tenenbaum would face a steep uphill battle countering the record label plaintiffs' evidence that he infringed their rights in 30 sound recordings by downloading and distributing them over the KaZaA peer-to-peer network—but it was still jarring to hear one of his attorneys openly admit liability today in court.

Tenenbaum has himself admitted to his KaZaA use multiple times, under oath, during his two days of depositions. And Judge Nancy Gertner’s last-minute order granting summary judgment for the plaintiffs on Tenenbaum’s proposed fair use defense removed his ability to argue to the jury, "Yes, I did it, but it wasn’t against the law."

This morning, one of Tenenbaum's own attorneys acknowledged—though outside the presence of the jury—that Tenenbaum is essentially defenseless on the issue of whether he committed copyright infringement. During a discussion about the admissibility of the past settlement discussions between Tenenbaum and the labels (normally precluded under Federal Rule of Evidence 408), Tenenbaum attorney Matthew Feinberg blurted out: "We’re admitting liability, your honor."

While in some ways not a surprise, given the state of the evidence, Feinberg’s admission was clear and rather stunning, coming as it did from the mouth of Tenenbaum's own advocate. The seemingly off-the-cuff remark did not constitute a formal throwing-in of the towel; the case will proceed, and liability will still be decided by the jury. But now it’s out in the open: this is really a trial about how much, not whether, Tenenbaum will have to pay.

A question of will

But the plaintiffs remain determined to show just how liable Tenenbaum, a 25-year-old graduate student in physics at Boston University, actually is. For that, they turned to Dr. Douglas Jacobson, an Iowa State University professor of electrical and computer engineering, who gave the jury a primer on IP addresses, peer-to-peer networks, KaZaA, and supernodes. Jacobson, who has served as an expert in several hundred of the music industry’s cases against individuals, sprinkled his testimony with folksy metaphors, one involving ads for puppies and kittens on grocery store bulletin boards, to illustrate concepts like data packets and metadata.

Jacobson opined that Tenenbaum’s computer had been used to download and distribute the 30 songs at issue in this case, and he also explained the results of his forensic examination of the Gateway computer Tenenbaum used at Goucher College and then BU (this is not the computer that MediaSentry says it detected sharing files on August 10, 2004, when Tenenbaum was at home in Providence, Rhode Island on summer break). This computer examination produced some of the most damning evidence against Tenenbaum, as it appears to show that he continued his use of peer-to-peer software to obtain and disseminate music even after he was contacted by the plaintiffs' lawyers in early 2005, then sued in August 2007.

Tenenbaum, opined Jacobson, installed LimeWire on his computer in February 2004 and installed a new version in February 2007. Tenenbaum was sharing files via LimeWire in February 2007, and "possibly as late as May of 2008," said Jacobson, explaining that he could not pinpoint the final date because certain registry files had been deleted from Tenenbaum’s computer. And about 250 files on that hard drive matched the file names in the KaZaA share folder detected by MediaSentry in August 2004.

This is important not just for liability (which the defense appears to have conceded), but for the issue of the "willfulness" of Tenenbaum’s conduct—which could have a dramatic impact on the amount of damages awarded by the jury. Statutory damages max out at $30,000 per work for "regular" infringement, but the upper limit increases to $150,000 per work if the jury finds that Tenenbaum willfully infringed. (Judge Gertner is keenly aware of how important the wilfullness issue is; last night she issued an order “requiring further argument on the question of how ‘willful infringement’ is defined.”)

Tenenbaum counsel Charles Nesson’s cross-examination of Jacobson was shockingly... conventional. He asked Jacobson about his compensation ($200/hour, with about 40-50 hours spent on this case) and the total volume of work he has done for the recording industry (about 300 expert reports)—standard questions intended to show that an expert’s opinions should be discounted because they were bought and paid for. (Similar questions were asked of Jacobson during the Thomas-Rasset trial earlier this year.)

On substance, Nesson zeroed in on the 25 files at issue for which MediaSentry downloaded only a small portion (including metadata)—but not the entire audio file. (MediaSentry downloaded the complete file only for five of the 30 songs at issue here, citing time and bandwidth limits).

Nesson suggested through his questioning that the 25 partial files might not actually represent song files, but instead "spoofs" released by copyright owners to frustrate peer-to-peer users. Jacobson countered that he is confident they were real song files, based on their associated metadata (which includes information including title, artist, album, file size, release group, etc.), and he testified that he cannot recall ever encountering a spoof in his years of work investigating allegations of copyright infringement. And, said a member of the plaintiffs' team, Tenenbaum testified that he listened to and enjoyed all 30 of the songs, which would seem to negate the possibility of any of them being fake files.

What sunk the majors?

Turning to the critical issue of harm, plaintiffs called their expert Stanley Liebowitz, an economics professor at the University of Texas at Dallas, who opined forcefully that file-sharing has harmed the market for recorded music. Liebowitz displayed a graph that showed the revenues from recorded music rising fairly steadily from 1973 until 1999, when they dropped dramatically and continued to fall through 2008, the last year for which he had data.

The cause of the sudden turn for the worse in 1999? Napster, testified Liebowitz. Recorded music revenues dropped from $18.5 billion in 1999 to $8.5 billion in 2008 (both in 2008 dollars). Liebowitz explained how he considered various explanations for the drop in revenue: overall economic conditions, change in prices, and consumer shifts in entertainment purchases away from music to DVDs and videogames. But, he said, the data simply didn’t support any of these explanations, leading him to conclude that the real culprit was consumers’ newfound ability to obtain music on the Internet without paying for it.

On cross, Nesson's interest in big theoretical questions returned. “What is property?” he asked to begin his examination. “Do you have a more pointed question?” retorted Judge Gertner, as she rested her face in her hands.

Nesson then asked Liebowitz when the music industry began to make money. Upon Liebowitz’s reference to the “Middle Ages,” Judge Gertner cut him off with, “This will be a very long trial if we’re going back to the Middle Ages.” To the relief of everyone in the courtroom, he skipped ahead to the 1970s.

Universal Music Group attorney JoAn Cho testified to her company’s ownership of copyright in 13 of the 30 sound recordings at issue in the case. As the song played in the courtroom, Cho identified the MediaSentry download of Nirvana’s “Come as you are” from “sublimeguy14@kazaa” as being the same one found on a legitimate CD. One of the younger members of the jury could be seen tapping his toe to the song, and Judge Gertner cracked a smile—though it was unclear whether she actually enjoyed the music or was simply thinking to herself, “Why in the world are we playing Nirvana in my courtroom?”

Feinberg handled the cross-examination of Cho—hardly among the plaintiffs’ most critical or controversial witnesses—and was surprisingly hostile. He attempted to grill her on UMG’s litigation strategy (which she said she played no role in formulating), but was shut down repeatedly by Judge Gertner, who several times announced “Sustained!” even before plaintiffs’ attorney Matthew Oppenheim had the chance to object—resulting in laughter from several jurors.

Tomorrow

Thursday’s session will begin with the conclusion of Nesson’s cross-examination of economist Liebowitz. Plaintiffs plan to call two attorney witnesses from Warner Music: Ron Wilcox, who will testify as to the music industry’s digital initiatives over the past decade, and Silda Palerm, who will confirm her company's ownership of copyright in songs including Green Day’s “Minority” and The Ramones' “The KKK Took my Baby Away.”

Plaintiffs will also call Tenenbaum to the stand, in what could be one of the most dramatic moments of the trial. And two more of Tenenbaum’s friends will appear by deposition, to rebut Tenenbaum’s suggestions that they had used KaZaA on his bedroom computer. One such friend, Antonio Franco, did that in a very brief live appearance this morning. “I spent a lot of time outdoors skateboarding,” rather than downloading music, said the fauxhawk-ed Franco. On cross, Nesson succeeded only in extracting Franco's concession that he had an “excellent 360 flip.”

The attorneys ended the day by assuring Judge Gertner that they remain on track to conclude their presentations and give the case to the jury on Friday.

Team Tenenbaum's biggest mistake

What has been the biggest mistake by Joel Tenenbaum's defense team? Failing to depose a single witness? Angering the judge by recording conversations with the court and opposing counsel? Spending time on a quixotic and ultimately unsuccessful effort to have the case webcast, rather than focusing on trial preparation? Part-way through the trial, it's now clear to me that the biggest mistake was a different one: failing to secure an expert to testify as to actual damages, i.e., the harm caused by Tenenbaum's downloading and "sharing" of the 30 songs at issue in this case.

Tenenbaum's liability for copyright infringement is an all-but-foregone conclusion. He has admitted under oath at his depositions that he used KaZaA and other p2p software for years, even after he was served with the complaint in this case. And now he will be forced to acknowledge those admissions on the stand, before the jury. The pile of forensic evidence from MediaSentry, Cox, and plaintiffs' expert Dr. Jacobson is mere icing on the plaintiffs' cake.

So the real action is in damages. The jury will be instructed that, if they find for the record labels on liability, they may award statutory damages ranging from $750 to $30,000 per work, or up to $150,000 if they find Tenenbaum's infringement was willful. That's a minimum of $22,500, and a max of $4.5 million -- obviously a huge range. The jury will be permitted to consider various factors in determining where within that range the award should fall, including the amount of actual damages.

Actual damages in a case like this are difficult to prove -- which is precisely why the law allows for statutory damages. Proving actual damages requires hard-core economic and statistical analysis -- more than having a company employee testify: There's been lots of piracy, and lots of job losses. Therefore piracy caused the job losses. Q.E.D.

Plaintiffs have such economic analysis, from their expert, University of Texas at Dallas economist Stanley Liebowitz. Defendant has...nothing. Barely a week before trial, Tenenbaum suggested he intended to call as a witness Felix Oberholzer-Gee, a professor at Harvard Business School who has concluded there is no evidence that peer-to-peer use has harmed the recorded music industry. But Judge Gertner granted the plaintiffs' motion to exclude him, on the obvious grounds that he was disclosed more than three months after the expert deadline. (It was never even clear that Oberholzer-Gee had actually agreed to testify.)

To be sure, Liebowitz vigorously disputes Oberholzer-Gee's findings and conclusions. But if Team Tenenbaum had retained him in a timely fashion, they would have at least been able to put a little meat on the bones of their "no harm, no foul" argument, and given the jury a plausible reason to choose an award at the low end of the range. But without any economist taking the stand on Tenenbaum's behalf, the defense can do little more than attempt to poke holes in Liebowitz's conclusions, and rely on their own arguments and assertions at closing.

So when we look back on what went wrong with the defense, failing to retain an economist to testify as to the lack of harm is probably Exhibit A -- rivaled only by the decision not to settle.

UPDATE: Today after trial I asked Tenenbaum's counsel Charles Nesson why he was not able to get Oberholzer-Gee to serve as a defense expert. Nesson told me he tried, but was never able to reach his colleague across the Charles. Nesson said he never actually had any contact with Oberholzer-Gee about this case.

Tenenbaum P2P trial features prophetic warnings of doom

Here's my take on the second day of the Joel Tenenbaum trial, cross-posted from Ars Technica:

True to his word, Harvard Law's Charles Nesson brought both Styrofoam and a "Necker Cube" diagram to court for his opening statement this morning, but the real drama was just beginning. The second day of the Joel Tenenbaum file-sharing trial featured Tenenbaum's own father taking the stand, recounting how he had warned his son about P2P use as far back as 2002.

***

Joel Tenenbaum downloaded and distributed thousands of songs without paying for them, and continued to do so for years after he was sued by the major record labels for this very activity, charged Tim Reynolds, the record labels’ lead attorney, as the trial of the 25-year old physics grad student got underway in earnest today in a Boston federal courtroom.

"We are here to ask you to hold the defendant responsible for his actions," said Reynolds, a partner in the Boulder, Colorado office of Holme, Robert & Owen. "Filesharing isn't like sharing that we teach our children. This isn't sharing with your friends."

But, countered his attorney, Harvard Law School professor Charles Nesson, Tenenbaum was no different from countless others in his generation who turned to the Internet for free music when Napster made it possible back in 1999. Nesson made no effort to deny that Tenenbaum had engaged in the activity of which he stands charged as the second file-sharing defendant ever to face trial: downloading and distributing 30 songs whose copyrights are owned by the four major record labels.

"Everyone could download [songs] for free. And millions and millions did. Joel was one of those millions," he told the five men and five women of the jury, the youngest of whom appears to be about 30. "In his way he's like every other kid. There's nothing that distinctive about Joel."

Nesson’s opening statement veered at times from “statement” (permissible) into "argument" (verboten), though it was always intriguing. Nesson crumbled a Styrofoam box into hundreds of bits to illustrate albums breaking into individual songs, then displayed a poster of the now-famous "Necker Cube" optical illusion, asking the jury to consider the case from two varying perspectives.

"The truth can very typically be seen from two different points of view," said Nesson.

Tenenbaum’s hopes of letting the jury determine whether his acts of infringement constituted fair use under the Copyright Act were dashed by a last-minute order from Judge Gertner, granting the plaintiffs' motion for partial summary judgment on the fair use defense. Her order, e-mailed to the parties at 1:37am on the morning of trial, said the fair use defense proposed by Tenenbaum would "shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment" and would "swallow the copyright protections that Congress has created."

Opening statements

Reynolds walked methodically through the evidence that, he says, proves Tenenbaum downloaded and shared the 30 songs on which the labels are seeking damages that could potentially reach $150,000 per work. Investigative firm MediaSentry detected KaZaA user "sublimeguy14@KaZaA" at the IP address 68.227.185.38 sharing 816 files at 12:49am on August 10, 2004. The ISP Cox Communications revealed through subpoena that 68.227.185.38 was assigned to a "J. Tenenbaum" in Providence, Rhode Island. And forensic examination of Tenenbaum's hard drive provided additional evidence that Tenenbaum used KaZaA and other peer-to-peer programs for years, even after he was served with the complaint in August 2007, said Reynolds.

But, he noted, the record labels hardly need all the forensics from MediaSentry and from Cox and from their expert, Iowa State University computer scientist Doug Jacobson, because they have something potentially better, and likely much more understandable to the jurors: Tenenbaum's own admissions at his two days of deposition that he used KaZaA to obtain music. Plaintiffs plan to call Tenenbaum to the stand, possibly as early as tomorrow.

Tenenbaum "tried to blame others for his conduct but continued to infringe long after he was caught, and even during the course of this lawsuit," said Reynolds, also the lead attorney in the recording industry’s $1.92 million victory over Jammie Thomas-Rasset in Minnesota last month. "He didn't take responsibility," and initially tried to pin blame on his friends, his sisters, a foster child living with his family, and even a "burglar."

And Tenenbaum's actions caused real harm, contended Reynolds. "The exact amount of harm is incapable of exact proof. But make no mistake about it: defendant's activities caused significant harm." Illegal downloading and distribution caused "significant lost sales, and reduced the labels’ ability to develop new artists," he said, emphasizing the impact on less-monied players in the music industry, including studio engineers and backup musicians.

Nesson's opening statement told a completely different story, of a digital generation that embraced peer-to-peer networks when they arrived on the scene and shouldn't be punished for sticking with them even as iTunes and numerous other legal, paid alternatives became available. "They listen to music with the technology available, and enjoy it with the technology available," he said of the "digital natives" studied by John Palfrey, the Harvard Law School professor whose proposed expert testimony Judge Gertner excluded as irrelevant.

And Tenenbaum doesn't bear responsibility for the music industry's problems of the past decade. “The Internet was not Joel’s fault. Joel did not make the Internet,” said Nesson. Referencing the sudden availability of "free bits" on the Internet, he said, "If you’re in the desert and it starts to rain, you need a new business."

First witnesses

The first witness called by the plaintiffs was Sony Music Entertainment Deputy General Counsel Wade Leak, who educated the jury on the basic functions of a record label, from A&R to connecting artists with producers to radio promotion to physical and digital sales. Leak also served as the vehicle for introduction of the copyright registrations of Sony's works, and identified the song "Pardon Me" by Incubus, which was played to the courtroom with no apparent reaction from the jury or Judge Gertner, whose musical tastes remain a mystery.

Leak also testified as to the harm allegedly caused by peer-to-peer use to his company, stating that the number of Sony Music employees has dropped by half since 2000, a body count he attributed in large part to piracy. (Plaintiffs plan to bolster their evidence of economic harm with testimony from University of Texas economist Stanley Liebowitz, an expert on the economic effects of copyright infringement. Tenenbaum has no economic expert, and Judge Gertner has barred his computer expert Dr. Johan Pouwelse from opining on economic and business issues.)

Nesson’s cross-examination of Leak was lengthy, and interrupted by frequent objections by plaintiffs' attorney Matthew Oppenheim, most of which were sustained. Indeed, on several occasions "sustained" escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, "I'm just trying to translate this into the Federal Rules of Evidence." And when Nesson, reacting to a sustained objection, explained what he was trying to "say," Gertner cut him off: "You're not supposed to be saying anything. You're supposed to be asking questions."

On substance, Nesson tried to get Leak to admit that Tenenbaum did not fit into the category of the worst of copyright infringers: he was not a criminal infringer and not a member of a "release group" who originally seeded the KaZaA network with unauthorized copies of songs. Instead, Tenenbaum was just "one more…bit of dust in the wind" whose KaZaA use had no significant effect on the availability of the songs at issue.

Nesson also tried, without success, to get Leak to say how much the plaintiffs were seeking in damages from Tenenbaum. "We are leaving that determination for the jury's discretion," said Leak, who testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate.

Mark Matteo of Cox Communications' security department testified about the process of linking the IP address identified by MediaSentry with the account held by "J. Tenenbaum" of Providence, RI. Nesson’s cross reminded the jury that the first initial "J" belongs to Judith Tenenbaum as well as Joel.

MediaSentry's staccato-talking anti-piracy cop Chris Connelly took the stand to describe how the company's automated software detected "sublimeguy14@KaZaA” at the IP address 68.227.185.38 sharing 816 files at 12:49am on August 10, 2004. The New Jerseyan confidently defended his company's accuracy: “There has been a zero error rate.”

But he acknowledged that MediaSentry cannot detect transfers from one peer to another, and thus does not have direct proof that 68.227.185.38 distributed files to any specific KaZaA users other than to MediaSentry itself, which downloaded five complete files from sublimeguy14@KaZaA for purposes of this litigation.

Plaintiffs briefly called to the stand Joel's high school friend James Chappel, whom Tenenbaum had previously identified as someone who had used his computer, possibly to download music. Chappel testified that he had used the computer in Joel's bedroom several times, but never to download music on KaZaA or otherwise.

Joel's father, psychiatrist Dr. Arthur Tenenbaum, was the last live witness of the day. He confirmed his son's musical tastes (they once listened together to the Fugees' "Killing me Softly," one of the 30 songs at issue in this case) and testified as to the computers at use in the family home. He recounted Joel demonstrating KaZaA for him at the bedroom computer. And, perhaps most damning, he testified that he called his son at college in 2002 to warn—quite prophetically—that Joel might get sued because of his p2p use. "You only get sued if you do it a lot," Joel responded.

The day concluded with a law firm associate reading deposition testimony from Joel's two sisters, Tova and Abigail. Joel testified during his deposition that both might have used KaZaA on the computer in his bedroom, but in their own subsequent depositions, both denied it.

Tomorrow will feature more denials from friends and acquaintances who Joel had suggested may have used his computer to download music. Other scheduled witnesses include label attorneys JoAn Cho of Universal and Silda Palerm of Warner, plaintiffs' computer forensics evidence Dr. Douglas Jacobson, and Joel Tenenbaum himself. Plaintiffs have indicated they hope to wrap up their case sometime Thursday morning, which will leave the defense little time for its own presentation if the jury is to receive the case by Friday, as per the schedule set by Judge Gertner.

Tenenbaum trial: day two preview

The Joel Tenenbaum opens today at 9am with opening statements. Plaintiffs asked for 20-30 minutes, defense counsel Charles Nesson for 40. Nesson's presentation promises to be unusual; yesterday he gave a preview of the demonstratives he plans to display to the jury, which include a Styrofoam box that he will use "to show the difference between atoms and bits, which is central to our case," as well as a poster of a "Necker Cube," whose relevance to this case remains a mystery.

After opening statements, plaintiffs will put on their first three witnesses: Sony attorney Wade Leak (who famously testified at the Thomas-Rasset trial that an award of $150,000 in statutory damages per work was "absolutely" appropriate), Chris Connelly of MediaSentry, and Mark Matteo of Cox Communications, Tenenbaum's ISP.

Nextgov.com: Espinel remains IP czar favorite

Nextgov.com reports that Victoria Espinel remains the frontrunner for the job as the first-ever White House Intellectual Property Enforcement Coordinator -- better known as the "IP czar":

Getting the IP enforcement coordinator in place has proven even more difficult despite the fact that the top candidate has been known for months. Victoria Espinel, who served as the first assistant trade representative for IP, a position created by former Trade Representative Susan Schwab in 2006, is ready to report for duty, sources said. The dilemma has been where to put her.

Unlike the cyber czar, the IP coordinator is a Senate-confirmed post, and White House Chief of Staff Emanuel has reportedly ruled out placement within the Domestic Policy Council, National Economic Council or National Security Council. The remaining options are establishing a stand-alone office or having the official housed within the USTR, OMB or Office of Science and Technology Policy -- and each could pose problems.

The IP zar slot was created by the PRO-IP Act, which was enacted last year with overwhelming bi-partisant support and signed into law by then-President Bush. During the 2008 campaign, Candidate Obama complained that "President Bush has failed to address the fact that...China fails to enforce U.S. copyrights and trademarks" and promised that "Barack Obama and Joe Biden will work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere." Yet more than six months in to the Obama Administration, still no IP czar.