Defendant's Pretrial Materials In Sony V. Tenenbaum
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Case 1:03-cv-11661-NG
Document 893
Filed 07/20/2009
Page 1 of 5
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _____________________________________ ) ) ) Plaintiffs, ) Civ. Act. No. ) 03-CV-11661-NG v. ) (LEAD DOCKET NUMBER) ) NOOR ALAUJAN, ) ) Defendant. ) _____________________________________ ) CAPITOL RECORDS, INC., et al.,
_____________________________________ ) SONY BMG MUSIC ENTERTAINMENT, et al., ) ) Plaintiffs, ) Civ. Act. No. ) 07-CV-11446-NG v. ) (ORIGINAL DOCKET NUMBER) ) JOEL TENENBAUM, ) ) Defendant. ) _____________________________________ ) DEFENDANT’S PRETRIAL MEMORANDUM The following is the Defendant's Pretrial Memorandum. 1. Names, addresses and telephone numbers of trial counsel. Plaintiffs: Timothy M. Reynolds Eve G. Burton HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 (303) 861-7000 Daniel J. Cloherty Victoria L. Steinberg DWYER & COLLORA, LLP
Matthew J. Oppenheim THE OPPENHEIM GROUP 7304 River Falls Drive Potomac, MD 20854 (301) 299-4986
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Document 893
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600 Atlantic Avenue - 12th Fl. Boston, MA 02210-2211 (617) 371-1000 Defendant: Charles Nesson Harvard Law School 1575 Massachusetts Ave. Cambridge, MA 02138 (617) 495-4609
Matthew H. Feinberg Matthew Kamholtz FEINBERG & KAMHOLTZ 125 Summer Street Boston, MA 02110-1621 (617) 526-0700
2. Whether the case is to be tried with or without a jury: The case is to be tried with a jury. 3. Summary of the positions asserted by all parties with regard to liability and damages: Joel Tenenbaum's use was fair. His actions were not profitseeking. He caused no damage. It is unjust that he has been and that he should be further punished. 5.
Contested issues of fact:
a.
Whether Defendant infringed.
b.
Whether Defendant infringed willfully.
c.
Whether the imposition upon the Defendant of a monetary damage award is just.
6.
Jurisdictional questions:
Jurisdiction is not disputed. 7.
Issues of law:
Defendant's Submission of Issues of Law:
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a.
Whether Defendant infringed.
b.
Whether Defendant infringed willfully.
c.
Whether the imposition upon the Defendant of a monetary damage award is just.
8.
Requested amendments to the pleadings:
None by the Defendant unless construction of the Complaint limiting it to the seven (now five) songs. 9.
Additional matters to aid in the disposition of the action:
Because the time in which this trial is to take place is time-limited, the allocation of time between plaintiffs and defendant will not be fair unless the time is fairly allocated between us. 10.
The probable length of trial:
Defendant anticipates 5 days for trial, inclusive of voir dire and based on the Court’s trial schedule of 9:00 a.m. to 4:00 p.m.. 11.
Voir dire procedures:
Defendant's contribution to a voir dire questionaire with be forthcoming. 12. The names and address of witnesses who shall testify at the trial, and the purpose of the testimony of each witness.
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Defendant's Witness List attached as Exhibit A hereto. 13. A list of proposed exhibits, indicating which exhibits may be admitted without objection and a brief statement of the ground for any objection to others. Defendant's Exhibit List attached as Exhibit B hereto. 14.
Jury Instructions.
Defendant’s proposed Jury Instructions attached as Exhibit C hereto. Defendant’s proposed Verdict Form will await the Court's ruling on fair use. Respectfully submitted, Dated: July 20, 2009
/s/Charles R. Nesson_________ Charles R. Nesson Counsel for Joel Tenenbaum
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CERTIFICATE OF SERVICE I, the undersigned hereby certify that on July 20, 2009, I caused a copy of the foregoing DEFENDANT’S PRETRIAL MEMORANDUM to be served upon the Plaintiffs via the Electronic Case Filing (ECF) system.
/s/Charles R. Nesson_________ Charles R. Nesson Attorney for Defendant
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DEFENDANT’S WITNESS LIST Defendant lists the following witnesses: FACT WITNESSES Joel Tenenbaum 1666 Commonwealth Avenue, Apt. 41 Brighton, MA 02135 Judith Tenenbaum 20 Upton Avenue Providence, RI 02906 Cary Sherman Recording Industry Association of America 1025 F Street NW Washington, DC 20004 Mitch Glazer Recording Industry Association of America 1025 F Street NW Washington, DC 20004 Wayne Marshall* 46 Plymouth Street Cambridge, MA 02141 EXPERT WITNESSES John G. Palfrey 8 Jay Street Cambridge, MA 02139 John G. Palfrey is the Vice Dean for Library and Information Resources and Henry N. Ess III Professor of Law at Harvard Law School. He holds an A.B from Harvard College, a M.Phil. from the University of Cambridge, and a J.D. from Harvard Law School. As his expert reports and supplements thereto set out, Prof. Palfrey is an expert in how ‘digital natives’ and children understand copyright generally, and fair use particularly. Janis Adriaan Pouwelse Delft University of Technology Mekelweg 4 2628 Delft
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The Netherlands J.A. Pouwelse is an assistant professor at Delft University of Technology. He holds a B.Sc. in computer science from the Haagse Hogeschool, and a M.Sc. and Ph.D. from the Delft University of Technology. As his expert reports and supplements thereto set out, Dr. Pouwelse is an expert in peer-to-peer technology and that technology’s effect on digital and social environments and markets. Felix Oberholzer-Gee * Harvard Business School Morgan Hall 213 Soldiers Field Allston, MA 02163 Felix Oberholzer-Gee is the Andreas Andresen Professor of Business Administration at Harvard Business School. He holds a master’s degree and Ph.D. in economics from the University of Zurich. Prof. Oberholzer-Gee is an expert in the effects of file sharing on the market for music, and his study concerning the market effects of file-sharing was heavily referenced by Plaintiffs in the depositions of J.A. Pouwelse and Joel Tenenbaum. * 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. DEMONSTRATORS Wayne Marshall* 46 Plymouth Street Cambridge, MA 02141 Mr. Marshall may run Internet music demonstrations required by Defendant and/or his counsel. Isaac Meister 1525 Massachusetts Avenue Cambridge, MA 02138 Mr. Meister may run any technical and/or Internet demonstrations required by Defendant and/or his counsel.
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DEFENDANT’S EXHIBIT LIST Defendant incorporates here by reference all exhibits listed by the Plaintiffs in their Exhibit List of July 17, 2009. Additionally, Defendant offers the following exhibits: No. 1 2 3
Description Photographs of the interior of 20 Upton Avenue, Providence, RI provided by Judith Tenenbaum Plaintiffs’ response to the interrogatories compelled by the Court for July 10, 2009 Any graphical exhibit derivative of Plaintiffs’ response noted in No. 2 above
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Page 1 of 14
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _____________________________________ ) ) ) Plaintiffs ) Civ. Act. No. ) 03-CV-11661-NG v. ) (LEAD DOCKET NUMBER) ) NOOR ALAUJAN, ) ) Defendant. ) _____________________________________) CAPITOL RECORDS, INC., et al.,
_____________________________________ ) SONY BMG MUSIC ENTERTAINMENT, et al., ) ) Plaintiffs, ) Civ. Act. No. ) 07-CV-11446-NG v. ) (ORIGINAL DOCKET NUMBER) ) JOEL TENENBAUM, ) ) Defendant. ) _____________________________________ ) DEFENDANT’S PROPOSED JURY INSTRUCTIONS The Defendant, Joel Tenenbaum, requests that the following unagreed-upon instructions be included in the Court’s charge to the jury.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
INFRINGEMENT, GENERAL Joel Tenenbaum is charged with infringing Plaintiffs' copyrights. An infringement of copyright is an unpermitted and unfair use of the copyrighted work. Copying a copyrighted work without permission is not necessarily an infringement. To be an infringement, the copying must be unfair. Use that is fair is not an infringement.
--17 U.S.C. sec. 107: "the fair use of a copyrighted work ... is not an infringement of copyright."
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, FUNCTION OF THE JURY Whether Joel Tenenbaum's conduct was infringing or fair will be for you to decide. It will be my task to rule on the admissibility of evidence, excluding that which is irrelevant. In making these rulings on evidence I will necessarily in some degree be framing your fairness judgment. I will do that by considering what might be relevant to you. But with respect to fairness judgment itself, you will be the ultimate judge.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, DEFINITION Fairness is a principle not capable of bright-line definition. We know it when we see and feel it. A sense of fairness is something you yourself bring to the task of being a juror in this case.
The fairness of Joel Tenenbaum's use is to be judged as between the user, Joel Tenenbaum, and the copyright holders, [name them], in the context of this specific case.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, FACTORS The copyright statute lists four factors which you must consider in determining whether the use of a work in any particular case is a fair use. These are: 1.
the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes; 2.
the nature of the copyrighted work;
3.
the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and 4.
the effect of the use upon the potential market
for or value of the copyrighted work.
In addition to these statutory factors, you may also consider the following factors: 5. the assumption of risk by the copyright holder in releasing the copyrighted work into an environment in which it was likely to be widely copied; 6. the copyright holders contribution to the attractiveness of downloading and sharing the copyrighted work by their marketing of it;
Case 1:03-cv-11661-NG
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Filed 07/20/2009
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7. the relative unattractiveness of the copyright holder's permitted alternative to the free downloading and sharing alternative; 8. the imposition on parents to police their childrens' computer use and live in fear that their children will fail to follow a rule they neither understand nor agree with. 9. the imposition on schools and universities of necessity to enforce rules that run contrary to their educational mission and constrain the efficiency and experimental reach of their information systems, under threat of liability for allowing their students access to the internet world of their peers.
These factors are not exclusive. In determining whether Joel Tenenbaum’s use was fair, you may bring to bear your experience and common sense.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, BURDEN OF PROOF The burden of proving unfairness is on the Plaintiffs as part of their burden of proving infringement. Defendant Joel Tenenbaum, as someone who was not using the copyrighted work as part of a business, is entitled to a presumption favoring noncommercial users. This presumption asks you start in your consideration and ultimately your deliberation of this case from the assumption that Joel Tenenbaum's use was fair, and then consider whether the evidence that his use was unfair persuades you. When deciding a question it sometimes it makes a difference from which end you start, like the presumption of innocence in criminal cases with which I am sure you are familiar. Similar to a criminal case, the Plaintiffs bear the burden of persuading you.
--Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
DAMAGES, SCOPE The uses in question here are the defendant's alleged downloading and sharing of five songs. While there may be evidence relating to other downloading and sharing, the only issue of infringement or fair use that is before you concerns these five songs. If you find that the Plaintiffs have proved infringement, and if you find that the Plaintiffs have proved that Joel’s use was not fair, you may only award damages, if any, as to those five songs.
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DAMAGES, WILLFULNESS Joel Tenenbaum is charged with infringing the Plaintiffs' copyrights willfully. If you determine not only that he infringed but also that he did so "willfully" then he is subject to an enhanced penalty for doing so. To infringe copyright willfully in this context means to copy a copyrighted work without permission knowing it to be a violation of law and doing it anyway for the purpose of making money. ---
17 U.S.C. sec. 504(c) describes three levels of statutory damages. The bottom level is "not aware." Logically, the next level up must be aware or knowing. But if the middle category is knowing, then the top level must be more than knowing: "knowing and done for commercial profit." Otherwise the statutory structure makes no sense.
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DAMAGES FOR WHAT Seven songs were listed in Exhibit A to the Complaint. Media Sentry verified for only these seven songs that the mp3 file they downloaded from Joel was a copy of the copyrighted sound recording of the song. The seven songs (now without explanation dropped to five) were the sole focus of their multiple sets of interrogatories and requests for admission. Notice to the Defendant that Plaintiffs were pursuing statutory damages for 30 additional songs was buried in a footnote to an unfiled and therefore not publicly reviewed disclosure statement in October, 2008, which I missed. From their viewpoint my continuing misimpression thereafter that we were litigating only the seven songs must have amused them. How many times did I say in media they follow that Joel was being sued for seven songs with liability threatened of over a million dollars?
Instead of more than a million Joel is now defending against the threat of almost five. And why stop there? The number chosen is almost totally in the Plaintiffs' control. Plaintiffs could have pleaded 851 songs, and added another thousand from Joel's current computer. This must be wrong, in math a reductio ad absurdum.
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Joel offers an alternative interpretation of the statute that makes more sense and keeps logic in proportion. If he is an infringer at all, then he is guilty of one infringing behavior for which he should be punished once, not a thousand times. He downloaded and shared music peer to peer.
504 (c) (1) authorizes "an award of statutory damages for all infringements involved in the action [snip] in a sum of not less than $750 or more than $30,000 as the court considers just."
That quite clearly seems to say for "all infringements involved in the action", not "each". The two statutory phrases snipped out of the quote above to clarify the meaning of the statutory declaration are, "with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." When applied to commercial counterfeiters with which this statute was designed to deal, these ancillary phrases means that if the copyright holder catches the guy selling counterfeit CD's, the copyright holder can collect statutory damages from him
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even though he wasn't the maker of the copies. it does not mean that the copyright holder can multiply $150,000 by the number of CD's they caught the guy selling.
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"JUST" DAMAGES
The jury should be told only that it's task is to assess damages that are "just". To instruct otherwise is to give the jurors a commercial frame of reference within which to consider the question of what is just in an award against a noncommercial defendant. This is bound to confuse the jury without explanation that the statutory range is meant to include criminal commercial infringers. This in turn may lead to a split-it-down-the-middle approach such as was taken by the jury in the Jammie Thomas Rasset case, split the difference between $750 and $150,000, roughly $80,000, that's fair, fill in 24 verdict forms and the jury is done, $1.92 million.
Let the jury in this case come back with the number they think is "just" without their sense of justice being tainted by a reference frame meant for another context. If the jury's verdict falls outside the frame of section 504(c) then it can be adjusted and its adjustment contested.
This obviously fairer and more reasonable approach than tainting the jury's sense of justice with huge numbers is
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mandated by the Supreme Court's holding in Feltner v. Columbia Pictures, 523 U.S. 340, 353 (1998): The Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c), including the amount itself.
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _____________________________________ ) ) ) Plaintiffs, ) Civ. Act. No. ) 03-CV-11661-NG v. ) (LEAD DOCKET NUMBER) ) NOOR ALAUJAN, ) ) Defendant. ) _____________________________________ ) CAPITOL RECORDS, INC., et al.,
_____________________________________ ) SONY BMG MUSIC ENTERTAINMENT, et al., ) ) Plaintiffs, ) Civ. Act. No. ) 07-CV-11446-NG v. ) (ORIGINAL DOCKET NUMBER) ) JOEL TENENBAUM, ) ) Defendant. ) _____________________________________ ) DEFENDANT’S PRETRIAL MEMORANDUM The following is the Defendant's Pretrial Memorandum. 1. Names, addresses and telephone numbers of trial counsel. Plaintiffs: Timothy M. Reynolds Eve G. Burton HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 (303) 861-7000 Daniel J. Cloherty Victoria L. Steinberg DWYER & COLLORA, LLP
Matthew J. Oppenheim THE OPPENHEIM GROUP 7304 River Falls Drive Potomac, MD 20854 (301) 299-4986
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600 Atlantic Avenue - 12th Fl. Boston, MA 02210-2211 (617) 371-1000 Defendant: Charles Nesson Harvard Law School 1575 Massachusetts Ave. Cambridge, MA 02138 (617) 495-4609
Matthew H. Feinberg Matthew Kamholtz FEINBERG & KAMHOLTZ 125 Summer Street Boston, MA 02110-1621 (617) 526-0700
2. Whether the case is to be tried with or without a jury: The case is to be tried with a jury. 3. Summary of the positions asserted by all parties with regard to liability and damages: Joel Tenenbaum's use was fair. His actions were not profitseeking. He caused no damage. It is unjust that he has been and that he should be further punished. 5.
Contested issues of fact:
a.
Whether Defendant infringed.
b.
Whether Defendant infringed willfully.
c.
Whether the imposition upon the Defendant of a monetary damage award is just.
6.
Jurisdictional questions:
Jurisdiction is not disputed. 7.
Issues of law:
Defendant's Submission of Issues of Law:
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Page 3 of 5
a.
Whether Defendant infringed.
b.
Whether Defendant infringed willfully.
c.
Whether the imposition upon the Defendant of a monetary damage award is just.
8.
Requested amendments to the pleadings:
None by the Defendant unless construction of the Complaint limiting it to the seven (now five) songs. 9.
Additional matters to aid in the disposition of the action:
Because the time in which this trial is to take place is time-limited, the allocation of time between plaintiffs and defendant will not be fair unless the time is fairly allocated between us. 10.
The probable length of trial:
Defendant anticipates 5 days for trial, inclusive of voir dire and based on the Court’s trial schedule of 9:00 a.m. to 4:00 p.m.. 11.
Voir dire procedures:
Defendant's contribution to a voir dire questionaire with be forthcoming. 12. The names and address of witnesses who shall testify at the trial, and the purpose of the testimony of each witness.
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Defendant's Witness List attached as Exhibit A hereto. 13. A list of proposed exhibits, indicating which exhibits may be admitted without objection and a brief statement of the ground for any objection to others. Defendant's Exhibit List attached as Exhibit B hereto. 14.
Jury Instructions.
Defendant’s proposed Jury Instructions attached as Exhibit C hereto. Defendant’s proposed Verdict Form will await the Court's ruling on fair use. Respectfully submitted, Dated: July 20, 2009
/s/Charles R. Nesson_________ Charles R. Nesson Counsel for Joel Tenenbaum
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CERTIFICATE OF SERVICE I, the undersigned hereby certify that on July 20, 2009, I caused a copy of the foregoing DEFENDANT’S PRETRIAL MEMORANDUM to be served upon the Plaintiffs via the Electronic Case Filing (ECF) system.
/s/Charles R. Nesson_________ Charles R. Nesson Attorney for Defendant
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DEFENDANT’S WITNESS LIST Defendant lists the following witnesses: FACT WITNESSES Joel Tenenbaum 1666 Commonwealth Avenue, Apt. 41 Brighton, MA 02135 Judith Tenenbaum 20 Upton Avenue Providence, RI 02906 Cary Sherman Recording Industry Association of America 1025 F Street NW Washington, DC 20004 Mitch Glazer Recording Industry Association of America 1025 F Street NW Washington, DC 20004 Wayne Marshall* 46 Plymouth Street Cambridge, MA 02141 EXPERT WITNESSES John G. Palfrey 8 Jay Street Cambridge, MA 02139 John G. Palfrey is the Vice Dean for Library and Information Resources and Henry N. Ess III Professor of Law at Harvard Law School. He holds an A.B from Harvard College, a M.Phil. from the University of Cambridge, and a J.D. from Harvard Law School. As his expert reports and supplements thereto set out, Prof. Palfrey is an expert in how ‘digital natives’ and children understand copyright generally, and fair use particularly. Janis Adriaan Pouwelse Delft University of Technology Mekelweg 4 2628 Delft
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The Netherlands J.A. Pouwelse is an assistant professor at Delft University of Technology. He holds a B.Sc. in computer science from the Haagse Hogeschool, and a M.Sc. and Ph.D. from the Delft University of Technology. As his expert reports and supplements thereto set out, Dr. Pouwelse is an expert in peer-to-peer technology and that technology’s effect on digital and social environments and markets. Felix Oberholzer-Gee * Harvard Business School Morgan Hall 213 Soldiers Field Allston, MA 02163 Felix Oberholzer-Gee is the Andreas Andresen Professor of Business Administration at Harvard Business School. He holds a master’s degree and Ph.D. in economics from the University of Zurich. Prof. Oberholzer-Gee is an expert in the effects of file sharing on the market for music, and his study concerning the market effects of file-sharing was heavily referenced by Plaintiffs in the depositions of J.A. Pouwelse and Joel Tenenbaum. * 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. DEMONSTRATORS Wayne Marshall* 46 Plymouth Street Cambridge, MA 02141 Mr. Marshall may run Internet music demonstrations required by Defendant and/or his counsel. Isaac Meister 1525 Massachusetts Avenue Cambridge, MA 02138 Mr. Meister may run any technical and/or Internet demonstrations required by Defendant and/or his counsel.
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Page 1 of 1
DEFENDANT’S EXHIBIT LIST Defendant incorporates here by reference all exhibits listed by the Plaintiffs in their Exhibit List of July 17, 2009. Additionally, Defendant offers the following exhibits: No. 1 2 3
Description Photographs of the interior of 20 Upton Avenue, Providence, RI provided by Judith Tenenbaum Plaintiffs’ response to the interrogatories compelled by the Court for July 10, 2009 Any graphical exhibit derivative of Plaintiffs’ response noted in No. 2 above
Case 1:03-cv-11661-NG
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Page 1 of 14
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _____________________________________ ) ) ) Plaintiffs ) Civ. Act. No. ) 03-CV-11661-NG v. ) (LEAD DOCKET NUMBER) ) NOOR ALAUJAN, ) ) Defendant. ) _____________________________________) CAPITOL RECORDS, INC., et al.,
_____________________________________ ) SONY BMG MUSIC ENTERTAINMENT, et al., ) ) Plaintiffs, ) Civ. Act. No. ) 07-CV-11446-NG v. ) (ORIGINAL DOCKET NUMBER) ) JOEL TENENBAUM, ) ) Defendant. ) _____________________________________ ) DEFENDANT’S PROPOSED JURY INSTRUCTIONS The Defendant, Joel Tenenbaum, requests that the following unagreed-upon instructions be included in the Court’s charge to the jury.
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
INFRINGEMENT, GENERAL Joel Tenenbaum is charged with infringing Plaintiffs' copyrights. An infringement of copyright is an unpermitted and unfair use of the copyrighted work. Copying a copyrighted work without permission is not necessarily an infringement. To be an infringement, the copying must be unfair. Use that is fair is not an infringement.
--17 U.S.C. sec. 107: "the fair use of a copyrighted work ... is not an infringement of copyright."
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Page 3 of 14
DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, FUNCTION OF THE JURY Whether Joel Tenenbaum's conduct was infringing or fair will be for you to decide. It will be my task to rule on the admissibility of evidence, excluding that which is irrelevant. In making these rulings on evidence I will necessarily in some degree be framing your fairness judgment. I will do that by considering what might be relevant to you. But with respect to fairness judgment itself, you will be the ultimate judge.
Case 1:03-cv-11661-NG
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Page 4 of 14
DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, DEFINITION Fairness is a principle not capable of bright-line definition. We know it when we see and feel it. A sense of fairness is something you yourself bring to the task of being a juror in this case.
The fairness of Joel Tenenbaum's use is to be judged as between the user, Joel Tenenbaum, and the copyright holders, [name them], in the context of this specific case.
Case 1:03-cv-11661-NG
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, FACTORS The copyright statute lists four factors which you must consider in determining whether the use of a work in any particular case is a fair use. These are: 1.
the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes; 2.
the nature of the copyrighted work;
3.
the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and 4.
the effect of the use upon the potential market
for or value of the copyrighted work.
In addition to these statutory factors, you may also consider the following factors: 5. the assumption of risk by the copyright holder in releasing the copyrighted work into an environment in which it was likely to be widely copied; 6. the copyright holders contribution to the attractiveness of downloading and sharing the copyrighted work by their marketing of it;
Case 1:03-cv-11661-NG
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Filed 07/20/2009
Page 6 of 14
7. the relative unattractiveness of the copyright holder's permitted alternative to the free downloading and sharing alternative; 8. the imposition on parents to police their childrens' computer use and live in fear that their children will fail to follow a rule they neither understand nor agree with. 9. the imposition on schools and universities of necessity to enforce rules that run contrary to their educational mission and constrain the efficiency and experimental reach of their information systems, under threat of liability for allowing their students access to the internet world of their peers.
These factors are not exclusive. In determining whether Joel Tenenbaum’s use was fair, you may bring to bear your experience and common sense.
Case 1:03-cv-11661-NG
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
FAIR USE, BURDEN OF PROOF The burden of proving unfairness is on the Plaintiffs as part of their burden of proving infringement. Defendant Joel Tenenbaum, as someone who was not using the copyrighted work as part of a business, is entitled to a presumption favoring noncommercial users. This presumption asks you start in your consideration and ultimately your deliberation of this case from the assumption that Joel Tenenbaum's use was fair, and then consider whether the evidence that his use was unfair persuades you. When deciding a question it sometimes it makes a difference from which end you start, like the presumption of innocence in criminal cases with which I am sure you are familiar. Similar to a criminal case, the Plaintiffs bear the burden of persuading you.
--Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)
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DEFENDANT'S PROPOSED JURY INSTRUCTION NO.
DAMAGES, SCOPE The uses in question here are the defendant's alleged downloading and sharing of five songs. While there may be evidence relating to other downloading and sharing, the only issue of infringement or fair use that is before you concerns these five songs. If you find that the Plaintiffs have proved infringement, and if you find that the Plaintiffs have proved that Joel’s use was not fair, you may only award damages, if any, as to those five songs.
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DAMAGES, WILLFULNESS Joel Tenenbaum is charged with infringing the Plaintiffs' copyrights willfully. If you determine not only that he infringed but also that he did so "willfully" then he is subject to an enhanced penalty for doing so. To infringe copyright willfully in this context means to copy a copyrighted work without permission knowing it to be a violation of law and doing it anyway for the purpose of making money. ---
17 U.S.C. sec. 504(c) describes three levels of statutory damages. The bottom level is "not aware." Logically, the next level up must be aware or knowing. But if the middle category is knowing, then the top level must be more than knowing: "knowing and done for commercial profit." Otherwise the statutory structure makes no sense.
Case 1:03-cv-11661-NG
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DAMAGES FOR WHAT Seven songs were listed in Exhibit A to the Complaint. Media Sentry verified for only these seven songs that the mp3 file they downloaded from Joel was a copy of the copyrighted sound recording of the song. The seven songs (now without explanation dropped to five) were the sole focus of their multiple sets of interrogatories and requests for admission. Notice to the Defendant that Plaintiffs were pursuing statutory damages for 30 additional songs was buried in a footnote to an unfiled and therefore not publicly reviewed disclosure statement in October, 2008, which I missed. From their viewpoint my continuing misimpression thereafter that we were litigating only the seven songs must have amused them. How many times did I say in media they follow that Joel was being sued for seven songs with liability threatened of over a million dollars?
Instead of more than a million Joel is now defending against the threat of almost five. And why stop there? The number chosen is almost totally in the Plaintiffs' control. Plaintiffs could have pleaded 851 songs, and added another thousand from Joel's current computer. This must be wrong, in math a reductio ad absurdum.
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Joel offers an alternative interpretation of the statute that makes more sense and keeps logic in proportion. If he is an infringer at all, then he is guilty of one infringing behavior for which he should be punished once, not a thousand times. He downloaded and shared music peer to peer.
504 (c) (1) authorizes "an award of statutory damages for all infringements involved in the action [snip] in a sum of not less than $750 or more than $30,000 as the court considers just."
That quite clearly seems to say for "all infringements involved in the action", not "each". The two statutory phrases snipped out of the quote above to clarify the meaning of the statutory declaration are, "with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." When applied to commercial counterfeiters with which this statute was designed to deal, these ancillary phrases means that if the copyright holder catches the guy selling counterfeit CD's, the copyright holder can collect statutory damages from him
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even though he wasn't the maker of the copies. it does not mean that the copyright holder can multiply $150,000 by the number of CD's they caught the guy selling.
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"JUST" DAMAGES
The jury should be told only that it's task is to assess damages that are "just". To instruct otherwise is to give the jurors a commercial frame of reference within which to consider the question of what is just in an award against a noncommercial defendant. This is bound to confuse the jury without explanation that the statutory range is meant to include criminal commercial infringers. This in turn may lead to a split-it-down-the-middle approach such as was taken by the jury in the Jammie Thomas Rasset case, split the difference between $750 and $150,000, roughly $80,000, that's fair, fill in 24 verdict forms and the jury is done, $1.92 million.
Let the jury in this case come back with the number they think is "just" without their sense of justice being tainted by a reference frame meant for another context. If the jury's verdict falls outside the frame of section 504(c) then it can be adjusted and its adjustment contested.
This obviously fairer and more reasonable approach than tainting the jury's sense of justice with huge numbers is
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mandated by the Supreme Court's holding in Feltner v. Columbia Pictures, 523 U.S. 340, 353 (1998): The Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c), including the amount itself.
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