Ray’s Tenenbaum wish-list, revisited
p2pnet news view P2P | RIAA:- “Tenenbaum file-swapping case gets seriously funky,” was the headline to Nate Anderson`s story in Ars Technica post.
Recording Industry vs The People’s Ray Beckerman (right), too, thought from way back that Joel’s defence was seriously lacking and indeed, stopped writing about the trial except in the barest of terms.
More recently, Mike Masnick stated on TechDirt:
“We`ve been careful to avoid covering most of the insanity around the Joel Tenenbaum trial from the last few months, as it became increasingly clear that the whole thing was a giant mess — culminating in the plan to try to defend Joel’s file sharing as ‘fair use’. Pretty much everyone told the legal team that such a defense would never fly and it was a huge mistake. ”
Yesterday, “RIAA v Joel: over already?” was the p2pnet headline with, as the teaser, “Judge takes the issue of fairness away”.
Now, “As far as I’m concerned the key triable issues of fact in SONY BMG Music Entertainment v Tenenbaum are mentioned in my blog post, My wish list for the SONY v Tenenbaum trial,” he posts on RIvTP, going on:
“The Judge’s allowing jury selection to go awry, and allowing all sorts of irrelevant material to be adduced in opening statements and in direct testimony, saddens me.
“I’m not going to comment any further on this case; I will just hope that the correct points are eventually touched upon, and that the case will be decided upon the law and the facts, which at this point seems highly unlikely.”
“Here`s my wish list for Monday`s SONY BMG Music Entertainment v. Tenenbaum trial,” he wrote last weekend, going on »»»
It`s a very simple, very short list. Basically, all I ask is that the trial be in the real world rather than in the parallel universe.
1. If the plaintiffs wish to prove distribution, they should have to prove:
(a) dissemination of copies
(b) to the public
(c) by sale, other transfer of ownership, license, rental, or lending. See 17 USC 106(3).
2. If the plaintiffs wish to claim statutory damages, they should have to prove as to each work allegedly infringed that its copyright registration effective date preceded the date on which defendant allegedly began using the online media distribution system in question. The jury should be required to make findings as to (a) the date defendant commenced using an online media distribution system (Kazaa) and (b) the copyright registration effective date of each work they find was infringed. The jury should be instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant`s commencement of use of Kazaa. See Practice Tip.
3. Plaintiffs` lawyers should be prohibited from making any reference in the presence of the jury to any copyright infringement by anyone other than defendant or to their business problems or anything else unrelated to a copyright infringement by this defendant.
4. If the plaintiffs have proved a basis for seeking statutory damages, the jury should not be allowed to award statutory damages of more than $750 per infringed work, absent proof of actual damages of hundreds of dollars per infringed work. (There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. Unless there is evidence of defendant actually having been a distributor, the actual damages are as a matter of law something less than the maximum wholesale price of 70 cents, so in that case the jury should be instructed to award $750 per work it found to have been infringed.) See Practice Tip.
5. If plaintiffs` counsel claim that defendant could have disseminated a great number of copies to the public they should be required to prove that technically, rather than assuming it to be true, and they should be required to prove then that it actually did happen, rather than be permitted to speculate that it might have.
6. Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.
7. Testimony from MediaSentry and Jacobson should be barred under Daubert:
(a) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry is an expert (see USA v. Ganier, 468 F.3d 920 (6th Cir. 2006); therefore its testimony should be barred for failure to provide expert witness disclosure;
(b) Alternatively, MediaSentry documents and testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702
8. In the event that there are multiple mp3`s from one album, the jury should be instructed that the album constitutes a single work. (See, eg UMG Recordings, Inc. v. MP3. Com, Inc., 109 F. Supp. 2d 223, 224 (S.D.N.Y. 2000); Rocking Chair Enters., L.L.C. v. Macerich SCG Ltd. P`ship, 407 F. Supp. 2d 1263, 1268-1269 (W.D. Okla. 2005); King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 864-866 (M.D. Tenn. 2006))
Is that too much to ask?
Is there a single thing I have said that is controversial, either as a matter of federal practice, or as a matter of copyright law?
Stay tuned. Or not.
Jon Newton- p2pnet
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
July, 2009
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July 29th, 2009 at 9:10 am
Personally, I try to not download or share RIAA based music. Can they get me if its not theirs?
I honestly think eventually, hopefully soonner than later, more artists will wake up and see they’re being screwed over, and go indie, and new artists will choose to not go with a “RIAA” label.
As far as the trial, its a joke and I, and probably others, saw it coming.
July 29th, 2009 at 12:45 pm
Just let do the RIAA parasites and the traitors helping them once and for all and give them what they deserve.
The future of our society depend on this. Sometime in history you have to do what you have to do.