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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. ) _____________________________________ ) DECLARATION AND EXPERT REPORT OF DR. J.A. POUWELSE Pursuant to Fed. R. Civ. P. 26(a)(2) and the general rules governing disclosure of expert testimony, Defendant hereby submits the following expert report of witness Dr. Johan Pouwelse. This report describes the testimony which will be provided by Dr. Pouwelse on behalf of Defendant Joel Tenenbaum.

I. Statement of Expert Opinion

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I, Dr. J.A. Pouwelse, will provide expert testimony regarding peer-to-peer file-sharing networks, the procedures required to be adopted to accurately identify users and activity on a file-sharing network, the Plaintiffs’ failure to adopt such procedures, and the inaccuracies and flawed assertions in the expert testimony submitted by Dr. Doug Jacobsen. Furthermore, I will also provide testimony on alternatives to file-sharing networks to obtain digital music, the cost of obtaining such music and financial impact of downloading through peer-to-peer file-sharing networks. I will testify to the following: i.

the technical characteristics of peer-to-peer filesharing networks and their relevance in determining the identity of users on the file-sharing network, specifically in refuting factual assertions made by expert witness Doug Jacobsen;

ii.

the structure of Internet IP addresses and the use of private non-globally unique IP addresses in peer-topeer file sharing networks, which were not properly considered by Plaintiffs’ expert;

iii.

the procedures required to be undertaken in order to establish whether a certain computer is being used to make copyrighted works available for download via a peer-to-peer network,

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iv.

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the failure by MediaSentry to adopt several of these required procedures;

v.

the general lack of acceptance of the methods employed by MediaSentry in the technical and scientific communities;

vi.

the large number of factual errors in the report provided by expert witness Doug Jacobsen;

vii.

the contradictions between Dr. Jacobsen’s report and previous sworn deposition testimony he has provided;

viii.

the previous erroneous claims made by MediaSentry against multiple institutions;

ix.

the conflicts of interest of Dr. Jacobsen which are relevant in assessing his objectivity in providing testimony on behalf of Plaintiffs;

x.

the lack of examination by Dr. Jacobsen of potential error rates;

xi.

the lack of exploration of alternative explanations for the data assessed;

xii.

the general lack of professionalism inherent in Dr. Jacobsen’s expert report which makes the report unacceptable based on relevant technical and scientific standards.

xiii.

the lack of any serious scientific article written by Dr Jacobsen in the area of peer-to-peer file-

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sharing networks or computer science in general in the past 20 years; xiv.

the alternatives to file-sharing networks for obtaining digital music through The Internet;

xv.

the monetary impact of downloading through peer-topeer file-sharing networks.

II. Data Considered The following data was considered in providing my expert report: i.

SafeNet Screenshots of Defendant’s computer (Ex. B to Complaint);

ii.

SafeNet Systemlogs from August 10, 2004 (Plaintiffs' Exhibit List, Ex. 6);

iii.

SafeNet Userlogs from August 10, 2004 (Plaintiffs' Exhibit List, Ex. 8);

iv.

SafeNet Download Logs from August 10, 2004 (Plaintiffs' Exhibit List, Ex. 9);

v.

SafeNet Trace of August 10, 2004 (Plaintiffs' Exhibit List, Ex. 10);

vi.

Screenshots of KaZaa installation (Plaintiffs' Exhibit List, Ex. 12);

vii.

November 3, 2004 Subpoena to Cox Communications, Inc., with copy of Court’s Order Granting Immediate Discovery (Plaintiffs' Exhibit List, Ex. 13);

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Letter to Cox High Speed Internet Customer (Plaintiffs' Exhibit List, Ex. 14);

ix.

Response of Cox Communications, Inc. to November 3, 2004 Subpoena (Plaintiffs' Exhibit List, Ex. 15);

x.

Prior sworn testimony provided by Dr. Jacobsen, including testimony in UMG v. Lindor (E.D.N.Y.)

xi.

Declaration and Expert Report of Dr. Doug Jacobsen, dated October 7, 2008;

xii.

Scientific research related to peer-to-peer file sharing networks and identification of users on these networks;

xiii.

Research previously published by me related to filesharing networks, accepted procedures for analyzing activity on such networks, and previous reports and testimony provided by Dr. Jacobsen;

xiv.

Expert report of

Dr. Yongdae Kim from Capitol v.

Thomas (D.Minn.). xv.

Defendant reserves the right to add additional exhibits prior to Dr. Pouwelse’s providing expert testimony.

III. Exhibits that Will be Used to Summarize or Support Expert Testimony Provided See section II above.

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IV. My Qualifications, including List of Publications Authored in the Past Ten Years I am an Assistant Professor at Delft University of Technology in the Netherlands, where I lead a research group investigating peer-to-peer technology. Since January 2008 I have been the scientific director of a 19 Million Euro project investigating the next-generation of peer-to-peer technology, called P2P-Next. As of March 2009 I also am technical director of a 6.8 Million Euro project investigating the purest form of peer-to-peer technology – self-organizing systems – in the “QLectives” project. Both projects are sponsored by research grants from the European Union under the 7th Framework program. Due to these grants, my team is at this time the largest peerto-peer research team of its kind in the world. My list of publications is as follows: i.

J. Pouwelse, P. Garbacki, J. Wang, A. Bakker, J.Yang, A.Iosup, D.Epema, M.Reinders, M. van Steen, H.Sips, "Tribler: A Social-Based Peer-to-Peer System", 5th International Workshop on Peer-to-Peer Systems (IPTPS'06), Feb 2006.

ii.

J.A. Pouwelse, P. Garbacki, D.H.J. Epema, H.J. Sips, "The Bittorrent P2P File-sharing System: Measurements and Analysis", 4th International Workshop on Peer-toPeer Systems (IPTPS'05), Feb 2005.

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iii.

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J.A. Pouwelse, M. van Slobbe, J. Wang, H.J. Sips, "P2P-based PVR Recommendation using Friends, Taste Buddies and Superpeers", Beyond Personalization 2005, Workshop on the Next Stage of Recommender Systems Research, San Diego, USA, Jan 2005.

iv.

J.R. Taal, J.A. Pouwelse, R.L. Lagendijk, "Scalable Multiple Description Coding for Video Distribution in P2P networks", 24th Picture Coding Symposium, December 2004, San Francisco, USA.

v.

J.A. Pouwelse, J.R. Taal, R.L. Lagendijk, D.H.J. Epema, and H.J. Sips, "Real-time Video Delivery using Peer-to-Peer Bartering Networks and Multiple Description Coding", IEEE Int'l Conference on Systems, Man and Cybernetics, October 2004.

vi.

J.A. Pouwelse, P. Garbacki, D.H.J. Epema, H.J. Sips, "A Measurement Study of the BitTorrent Peer-to-Peer File-Sharing System", technical report PDS-2004-003, April 2004.

vii.

J.A. Pouwelse, "Open Information Pools", Usenix Conference, San Diego, 1999.

viii.

J.A. Pouwelse, K. Langendoen, H. Sips, "Applicationdirected voltage scaling", IEEE Transactions on Very Large Scale integration (TVLSI), Sep 2002 (invited paper).

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ix.

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J.A. Pouwelse, K. Langendoen, H. Sips, "Voltage scaling on a low-power microprocessor", Mobile Computing Conference (MOBICOM), Jul 2001.

x.

J.A. Pouwelse, K. Langendoen, H. Sips, "Energy priority scheduling for variable voltage processors", International Symposium on Low-Power Electronics and Design (ISLPED), Aug 2001.

xi.

J.A. Pouwelse, K. Langendoen, I. Lagendijk H. Sips, "Power-aware video decoding", Picture Coding Symposium (PCS), 2001.

xii.

J.A. Pouwelse, K. Langendoen, H. Sips, "Voltage scaling on a low-power microprocessor", MMSA, 2000.

xiii.

J.A. Pouwelse, K. Langendoen, H. Sips, "Power consumption trade-off for wireless audio access", Mobile Multimedia Conference (MoMuC), Japan, 2000.

xiv.

J.A. Pouwelse, K. Langendoen, H. Sips, "Low-power technology for augmented reality terminals", International Workshop on Augmented Reality (IWAR), 1998.

xv.

J.A. Pouwelse, "Power Management for Portable Devices", Delft University of Technology, 20 Oct 2003.

V. List of Cases During Past Four Years in Which the Witness Testified as an Expert At Trial or by Deposition

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a. UMG Recordings, Inc. et al v. Lindor (E.D.N.Y.) b. Brein Foundation v. UPC (The Netherlands) c. Stokke v. Markplaats (The Netherlands)

VI. Statement of the Compensation to be Paid for the Study and Testimony in the Case This study and testimony is provided free of charge. Reasonable expenses in preparing for and providing testimony in the case may be refunded by defendant.

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JOHN G. PALFREY, JR. 8 Jay Street, Cambridge, MA 02139 617.864.0062 (home); 857.928.0415 (mobile); 617.384.9132 (office) [email protected] (e-mail) http://blogs.law.harvard.edu/palfrey (weblog/homepage)

ACADEMIC EXPERIENCE Vice Dean for Library and Information Resources, Henry N. Ess Professor of Law, Harvard Law School Cambridge, MA 2008 – Present: Lead law library and oversee expanded use of IT resources for Harvard Law School. Teach courses on Internet law and intellectual property. Principal Investigator on the Internet and Democracy, OpenNet Initiative, and Digital Natives research projects as Faculty Co-Director at the Berkman Center for Internet & Society. Clinical Professor of Law, Harvard Law School Cambridge, MA, 2005 –2008: Teaching courses on Internet law and intellectual property, supervising JD and LLM independent writing and research, and overseeing cyberlaw clinical teaching activities. Special Advisor to the Dean of HLS for Information Technologies. Co-chair of the HLS Information Technologies committee. Taught a Freshman Seminar on the Law of the Internet, Harvard College (Fall, 2005; Fall, 2006). Principal Investigator on Internet filtering (under a $3 million grant from the MacArthur Foundation), Internet Governance ($2 million in grants from the US Department of State, the Bradley Foundation, and others), Intellectual Property, New Media, and Computer Security research projects. Member of the Mather House Senior Common Room at Harvard College. Visiting Professor of Law and Information, University of St. Gallen (Switzerland) St. Gallen, Switzerland, 2007 – 2008: Visiting member of the law faculty (part-time). Executive Director, Berkman Center for Internet & Society, Harvard Law School Cambridge, MA, 2002 – 2007: Managing the staff, operations, finance and strategy of a leading Internet research center at HLS. Raised over twenty million dollars in grant and gift funds from foundations such as MacArthur, Soros, Mellon, Bradley, Revson, Oak, Omidyar, Hewlett, Ford, and others; corporations such as Google, eBay, IBM, Oracle, Microsoft, Sun, Lenovo, LexisNexis, PayPal, AOL, and others; and individuals. Lecturer on Law, Harvard Law School Cambridge, MA, 2003 – 2005: Taught seminar at HLS on the international aspects of Internet law (Fall, 2003 and Fall, 2004). Taught Internet Law Colloquium (with Profs. Fisher, Nesson, and Zittrain, 2004 – 2005) and Digital Democracy (with Prof. Nesson, Fall term 2003 and 2004). Advised independent study, clinical study, third-year papers for JD students, and LLM papers. Appointed Lecturer on History & Literature, 2005, in the Faculty of Arts and Sciences, Harvard University. Faculty, Harvard University Extension School Cambridge, MA, 2002 – 2005: Taught “Internet and Society: The Technologies and Politics of Control,” an Internet Law course, with both in-class and distance students during four semesters (Spring, 2002; Spring, 2003; Spring, 2004; Spring, 2005). Teaching Fellow, Internet Law Courses, Harvard University Cambridge, MA, 2000 – 2001: Assisted in teaching and curriculum development of courses at Harvard Law School and Kennedy School of Government. Editor | Staff, Harvard Environmental Law Review Cambridge, MA, 1999 – 2000: Edited for a Harvard Law School law review on environmental issues.

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BOOKS _______, with Ronald Deibert, Rafal Rohozinski, and Jonathan Zittrain, eds. ACCESS DENIED: THE PRACTICE AND POLITICS OF INTERNET FILTERING (MIT Press, 2008). _______, with Urs Gasser, BORN DIGITAL: CONNECTING WITH A GLOBAL GENERATION OF DIGITAL NATIVES (Basic Books, 2008)

LAW JOURNAL PUBLICATIONS ________, with Robert Rogoyski, A Move to the Middle: The Enduring Threat of Harmful Speech to the End-toEnd Principle, 21 WASH. U.J.L. & POL’Y 31 (2006). ________, with Urs Gasser, Catch-as-Catch-Can: A Case Note on Grokster, SWISS REVIEW OF BUSINESS AND FINANCIAL MARKET LAW 78 (2006), Vol. 2. ________, The End of the Experiment: How ICANN’s Foray into Global Internet Democracy Failed, 17 HARV. J.L. TECH. 410 (2004). ________, with David R. Johnson & Susan P. Crawford, The Accountable Net: Peer Production of Internet Governance, 9 VA. J. L. & TECH. 9 (2004).

CHAPTERS IN BOOKS ________, Reluctant Gatekeepers: Corporate Ethics on a Filtered Internet, book chapter in GLOBAL INTERNET TECHNOLOGY REPORT, 2006-2007 (World Economic Forum/Macmillan, 2007). ________, Local Nets: Filtering and the Internet Governance Problem, book chapter in THE GLOBAL FLOW OF INFORMATION, Jack Balkin et al., eds. (forthcoming). ________, Global Innovation and Licensing Opportunities on the Internet, book chapter in LICENSING BEST PRACTICES, (New York: John Wiley & Sons, 2006). ________, Stemming the International Tide of Spam, book chapter in TRENDS IN TELECOMMUNICATIONS REFORM (International Telecommunication Union, 2006). ________, with Lawrence Lessig and Mary Rundle, Net Dialogue Perspectives on International Net Governance, book chapter in WORLD SUMMIT ON THE INFORMATION SOCIETY (WSIS) JOURNAL (2005). ________, Holding Out for an Interoperable DRM Standard, book chapter in DIGITAL RIGHTS MANAGEMENT: THE END OF COLLECTING SOCIETIES?, (Berne: Staempfli, 2005).

OTHER RECENT PUBLICATIONS ________, with Urs Gasser, Breaking Down Digital Barriers: How and When Interoperability Leads to Innovation, plus three companion case studies on DRM, Digital Identity, and Web Services, (Berkman Center Publications Series, 2007). ________, Case Commentary: “We Googled You,” HARVARD BUSINESS REVIEW (June, 2007). ________, with Derek Bambauer and David Abrams, A Comparative Analysis of Spam Laws: The Quest for a

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Model Law (International Telecommunication Union, 2005). ________, with David R. Johnson & Susan P. Crawford, Trusting the Net: Peer Production of Internet Governance, __ INFORMATION TECHNOLOGIES AND INTERNATIONAL DEVELOPMENT __ (Cambridge: MIT Press, 2005). ________, with Ronald Deibert, Jonathan Zittrain, and Rafal Rohozinski, a series of reports on Internet Filtering in countries including Saudi Arabia, China, Iran, Vietnam, the UAE, Yemen, Singapore, and Bahrain, published through the OpenNet Initiative, at http://www.opennet.net/ (2004 – present). ________, with William W. Fisher, et al., Copyright and Digital Media in a Post-Napster World, Berkman Center Publications Series, jointly with Gartner|G2 (2003 and 2005 editions). ________, with William W. Fisher, et al., Content & Control: Assessing the Impact of Policy Choices on Potential Online Business Models in the Music and Film Industries, Berkman Center Publications Series, (2005). ________, with William W. Fisher, et al., iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media . A Case Study, Berkman Center Publications Series, (2004). ________, ABA Report on Dispute Resolution in E-Commerce, DISPUTE RESOLUTION MAGAZINE, Winter 2003, at 38. ________, OP-EDS AND COLUMNS: In major daily, weekly and monthly publications, such as “The Digital Copyright Crisis” (Boston Globe, September 7, 2004), “Electronic Voting and Copyright” (C|Net, October 5, 2004), “Engaging Young Bostonians in Citizenship” (Boston Globe, July 5, 2004), “Somerville Stumps in Cyberspace” (Boston Globe, September 2, 2005) “Censorship, Inc.?” (Newsweek, February 27, 2006). “Deploying the Wisdom of the Crowds Against Badware” (with Prof. Jonathan Zittrain, in CNET, July 29, 2006); “The Law School Curriculum: What is Technology’s Role?” (National Law Journal, November 13, 2006).

OTHER PROFESSIONAL EXPERIENCE Associate, Ropes & Gray LLP Boston, MA, 2001 – 2002: Attorney working on intellectual property, Internet law, private equity investments, and corporate matters. Admitted to the Massachusetts & New York Bars. Co-Founder and Vice-President of Operations, Analine Technologies Boston, MA, 1999 – 2001: Responsible for operations, business development and finance for start-up. Raised venture capital and angel financing. Company acquired by competitor. Special Assistant to John DeVillars, U.S. EPA-New England Administrator Boston, MA, 1994 – 1996, 1999 – 2000: Appointed by the White House to serve as political aide to New England’s senior environmental official, serving as speechwriter, press officer, editor and advisor. Campaign Management, Staff, and Internships Washington, DC and Boston, MA, 1987 – 1998: Directed all aspects of a state-wide campaign for Attorney General of Massachusetts (for state Sen. Lois Pines), including fund-raising, field organization, volunteer coordination, and advance. Campaign to Elect Christopher Lydon, 1993; Sierra Club National Legislative Office, Summer 1992; Campaign Director, National Environmental Law Center, Summer 1991; Field Manager, U.S. Public Interest Research Group, Summer 1990.

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SELECTED BOARDS AND OTHER PROFESSIONAL ACTIVITIES • • • • • • • •

Member, Board of Directors, Mass2020 Foundation, 2005 – present. Founder and Chairman, Board of Directors, Top Ten Media Holdings, LLC, 2005 – present. Venture Executive, Highland Capital Partners, 2007 – present. Member, Board of Directors, My Virtual Model, Inc., 2006 – 2008. Member, Board of Directors, Newsilike Media Group, Inc., 2005 – present. Member, Board of Advisors, BlueWave Strategies, 2002 – present. Member, Board of Directors, Charles River Watershed Association, 2001 – 2007. Co-Founder and General Partner, RSS Investors, L.P., 2005 – 2007.

EDUCATION Harvard Law School: J.D. cum laude, June 2001 University of Cambridge: M.Phil. in Historical Studies, July 1997 Harvard College: A.B. magna cum laude in History and Literature of America, June 1994 Phillips Exeter Academy: High Honors; Lindsey Crawford Memorial Scholarship to Harvard College, 1990

AWARDS AND HONORS • • • • • • • • • • • • • • •

Certificate of Distinction in Teaching, Awarded by the Bok Center at Harvard University, 2007 Dean’s Commendation for Excellence in Teaching, Harvard Extension School, 2005 Super Lawyers’ Rising Stars, 2005, 2006, 2007 (listed in Boston Magazine as a “rising star” in the field of law) Fellow, British-American Project, 2004 – present IDEAS Boston, 2004 (chosen by Boston Globe as one of 32 “leading thinkers” from the New England region) Rotary Foundation Ambassadorial Scholar to the University of Cambridge, 1996-1997 U.S. EPA Gold Medal (highest national award), 1996 U.S. EPA Bronze Medal (highest regional award), 1996 U.S. Government Outstanding Scholar Program, 1994-1996 Commendation from Governor Lincoln Almond of Rhode Island for Excellence in Government Service, 1996 Honors thesis on anti-slavery and the transcendentalists, Harvard College, summa cum laude, 1994 Ford Foundation Research Grant for the study of American history, 1993 John Harvard Scholar, 1993; Harvard College Scholar, 1991, 1992, 1994 Dean’s List, Harvard College, 1990 - 1994. Everett Public Service Grant for research, 1992

ACTIVITIES •

Harvard Varsity Squash: Co-captain of an undefeated National Championship team. Lettered on four National Championship teams, 1990 - 1994. John M. Barnaby Award for Improvement and Dedication, 1992, 1994.

•

Boston Marathon: Finisher, 1992 & 1993.

•

Harvard Glee Club: First tenor and section leader, 1990-1994.

References available upon request.

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From: Timothy M Reynolds Sent: Friday, April 24, 2009 8:29 AM To: [email protected] Cc: 'Matthew H. Feinberg'; 'Cloherty, Dan' Subject: RE: Tenenbaum, J. (D. Mass) Charlie: Please advise as to how long you will need to supplement Defendant's disclosures. We need to get something on file with the court regarding these deadlines as soon as possible. Tim -------------------------------------------------------------------------------From: Timothy M Reynolds Sent: Wednesday, April 22, 2009 2:10 PM To: '[email protected]' Cc: Matthew H. Feinberg; 'Cloherty, Dan' Subject: RE: Tenenbaum, J. (D. Mass) Charlie: How long will you need to supplement? Tim -------------------------------------------------------------------------------From: Charles Nesson [mailto:[email protected]] Sent: Wednesday, April 22, 2009 1:25 PM To: Timothy M Reynolds Cc: Matthew H. Feinberg Subject: Re: Tenenbaum, J. (D. Mass) tim, we will go back to each of our experts with your objections and supplement the disclosures. On Mon, Apr 20, 2009 at 3:20 PM, Timothy M Reynolds <[email protected]> wrote: Hello Charlie: I am following up on our conference regarding Defendant's witness disclosures under Rule 26(a)(2). While Plaintiffs have serious questions concerning the admissibility of any testimony from these witnesses under Rules 403 and 702, as a threshold matter, the disclosures provided by Defendant do not satisfy Rule 26(a)(2)(B). Among other things, they fail to provide a statement of the "opinions to be expressed and the basis and reasons therefor” as well as a listing of “the data or other information considered by the witness in forming them.” See Fed. R. Civ. P. 26(a)(2)(B). The disclosure for Dr. J.A. Pouwelse fails to contain the information required under Rule 26(a)(2)(B)(i) and (ii). As we discussed, Dr. Pouwelse's report lists topics, but does not provide any actual opinions or the basis for such opinions. Also, in section II of Dr. Pouwelse's report, items xii and xiii fail to identify the actual data considered. The disclosure for John G. Palfrey fails to contain the information required under Rule 26(a)(2)(B)(i), (ii), (iv), and (v). Like Dr. Pouwelse, Mr. Palfrey's report lists topics, but does

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not provide any actual opinions or the basis for such opinions. Mr. Palfrey's report also fails to identify the data considered, contains no list of publications, and does not specify whether Mr. Palfrey has ever testified as an expert at trial or deposition on any topic. The disclosure for John Perry Barlow fails to contain the information required under Rule 26(a)(2)(B)(i), (ii), and (iv). Mr. Barlow's report does not provide any basis for his opinions, does not list the data considered, and does not list any qualifications or publications. As we discussed, please let me know whether Defendant will agree to supplement these disclosures. In addition, because Plaintiffs cannot complete their expert discovery or determine whether rebuttal experts may be necessary until Defendant provides complete disclosures, please let me know whether Defendant will agree to extending the deadline for Plaintiffs' rebuttal disclosures and the deadline for completion of discovery. If you have any questions, please let me know. Thanks very much. Tim Timothy M. Reynolds Holme Roberts & Owen LLP 1801 13th Street, Suite 300 Boulder, Colorado 80302 303.417.8510 (Direct) 303.866.0200 (Fax) [email protected]

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From: Raymond Bilderbeck Date: Sun, Mar 29,2009 at 8:08 PM To: nesson at law.harvard.edu Cc: lessig at pobox. com If I can weigh in on this, I would have to agree that if the centerpiece of our case at trial is going to be this "noncommercial fair use" argument to which you seem committed, it would be a big mistake to call Professor Lessig to the stand. From the sliver of his work that I have read, I gather that even if he agreed to say what we would like him to say (which seems unlikely), opposing counsel would have a field day on cross-examination, given his extensive writings on these issues. When writing the "draft" disclosures in light of your comments on my initial draft, I found myself writing more from your perspective on the case than based upon anything I had gleaned from Professor Lessig's work. I just assumed that you knew something about Professor Lessig that I did not. Apparently, this is not the case. All of this looks very bad from my perspective. I think that introducing our experts at this late stage to the very novel 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. At this point, I have no idea what our disclosures will look like. And they have to

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be filed TOMORROW. Bad, bad, bad. We should have been working on this for weeks rather than days. R. >it is practically impossible to frame and present a nullification case. despite >=== message truncated ===

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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. ) _____________________________________ ) AMENDED DECLARATION OF JOHN PERRY BARLOW

1.

I, John Perry Barlow, am the vice-chairman of the

board of directors of the Electronic Freedom Foundation, an organization I co-founded in 1990. Since May of 1998, I have been a Fellow at the Berkman Center for Internet and Society. I am a poet and musician, and between 1971 and 1995, I was a lyricist for the Grateful Dead, a well renowned American music group. I previously served on the masthead of Wired magazine. In the past I have contributed articles to Wired, the New York

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Times, and Communications of the Association for Computing Machinery. I speak, consult, and write for a living. These positions and experiences qualify me to speak about the fairness of peer-to-peer file sharing in the context of the recording industry and the technological environment in which such actions occur. 2.

Given my personal experiences in the music industry,

and my position as a public intellectual in discourse on copyright, music, and technology, I am able to testify about the historical context of the record industry’s anti-file sharing campaign, its larger merits and shortcomings, and the social implications of litigation such as that before this court. I am, in particular, aware of how the economics of “file-sharing” can work to the great benefit of musicians and creators. The Grateful Dead allowed our fans to tape our concerts, essentially giving our music away for “free.” In doing so, we essentially invented viral marketing, solving an advertising problem that our record companies were never to address and becoming enormously successful in the process. 3.

I will testify that the Internet, and peer-to-peer

technology in particular, allow us to do that which we, as humans, fundamentally need to do: share art. I will explain how digital technology has finally freed us from the physical medium of CDs and other increasingly antiquated mediums, how this

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conversion challenges conventional application of the institution of copyright, and why this natural evolution should be welcomed. 4.

I will testify that the music industry will never be

endangered because, for reasons I will not presume to know with certainty, we as humans absolutely require music, and because in the music business as I know it, familiarity, not scarcity, creates value. I will explain why this means that the industry surrounding music will never cease to exist in some form. I will explain that the online world presents us with a “gift economy,” where no moral blameworthiness attaches to non-commercial sharing, and I will explain why this does not threaten the music industry. 5.

I will testify that the recording industry is

complicit in allowing itself to hold on to antiquated business models rather than adjust to the changing landscape around them. I will explain why the recording industry must evolve and why it is improper for the industry to attempt to institutionalize stagnation through their litigation and legislation efforts. 6.

I will present no exhibits at trial.

7.

I have not presented expert testimony, neither by

deposition nor at trial, in the past four years. 8. this case.

I am receiving no compensation for my testimony in

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9.

I have no publications that I must list.

10.

I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true and correct.

JOHN PERRY BARLOW Dated:

May 10, 2009

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