Plaintiffs' Brief Re Judge/jury Divide On Fair Use
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CAPITOL RECORDS, INC., et al., Plaintiffs, v. NOOR ALAUJAN, Defendant.
) ) ) ) ) ) ) ) )
) SONY BMG MUSIC ENTERTAINMENT, ) et al., Plaintiffs, ) ) v. ) ) JOEL TENENBAUM, ) ) Defendant. ) )
Civ. Act. No. 03-cv-11661-NG (LEAD DOCKET NUMBER)
Civ. Act. No. 07-cv-11446-NG (ORIGINAL DOCKET NUMBER)
PLAINTIFFS’ RESPONSE TO COURT’S JULY 14, 2009 ORDER REGARDING FAIR USE ISSUES In its July 14, 2009 Order, the Court invited the parties to brief “whether fair use was historically treated as an equitable defense, and if so, whether it is properly decided by a judge or jury.” (Doc. 880, at 2). As described below, Plaintiffs respectfully submit that this is not necessary because the Court should resolve this issue on summary judgment. Neither of Defendant’s two opposition briefs1 raises any issue of material fact. While the parties may 1
Defendant filed his Opposition on July 17, 2009 (doc. 889) and filed a “Memorandum of Law to Supplement Defendant’s Opposition” on July 20, 2009 (doc. 890), three days after the deadline to file oppositions to summary judgment. See June 16, 2009 Order (Doc. 850) (Setting July 17, 2009 as deadline for oppositions to summary judgment).
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disagree as to which factors should be considered in the determination of fair use, there is no disagreement as to the underlying facts themselves. Accordingly, judgment should be entered as a matter of law on Defendant’s fair use defense. As the Court is aware from its Order, there is a long history to the fair use doctrine. Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841); Backus v. Gould, 7 How. 798, 12 L. Ed. 919 (1849); Feltner v. Columbia Pictures Telev. Inc., 523 U.S. 354 (1998); Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 561 (1985); Campbell v. Acuff-Rose Music, 510 U.S. 569, 590 (1994); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, U. PA. L.R. 549 (2008); Pierre N. Leval, Fair Use Rescued, 44 U.C.L.A. L. REV. 1449, 1456–1457 (1997); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV.L. REV. 1105 (1990). In his Response to the Court’s Order, Defendant has taken the position that disputed issues of material fact are to be determined by the jury. Without expanding on the extensive history of fair use, for purposes of this case, and this case alone, to the extent the Court finds an issue of triable fact and does not subsequently issue a directed verdict, Plaintiffs stipulate that the issue of fair use can be considered by the jury. SUMMARY JUDGMENT ON FAIR USE IS APPROPRIATE Plaintiffs respectfully submit that whether fair use is properly decided by the judge or jury is of no moment in this case. Indeed, as demonstrated in Plaintiffs’ Memorandum In Support of their Motion for Summary Judgment (doc. 872), there are no disputed issues of material fact to be determined by the finder of fact and judgment should enter in Plaintiffs’ favor as a matter of law. In fact, every court to rule on fair use in the P2P filesharing context has rejected it as a matter of law. (See id. at 10). Because Defendant fails all four statutory factors and his proposed additional factors have either been rejected as a matter of law or must be
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rejected as patently absurd, the Court should enter judgment in Plaintiffs’ favor on Defendant’s fair use defense. See Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119, 1120 (9th Cir. 1997) (“‘Fair use is a mixed question of law and fact.’ If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” (citing Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 559 (1985) (other citations omitted)); accord Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177, 183 (D. Mass. 2007) (“Fair use determinations usually present mixed questions of fact and law. However, where ‘no material historical facts are at issue’ and ‘[t]he parties dispute only the ultimate conclusions to be drawn from the admitted facts,’ fair use can be decided by the Court.”) (citation omitted). Accordingly, there is nothing for the finder of fact to decide and it does not matter whether fair use belongs to the judge or jury. On July 17, 2009, Defendant filed his Opposition to Plaintiffs’ Motion for Summary Judgment. But, Defendant’s Opposition fails to contest a single fact designated on Plaintiffs’ Statement of Material Facts. Accordingly, each of the facts on Plaintiffs’ Statement of Material Facts is deemed admitted. Mass. L.R. 56.1. As the underlying facts are not in dispute, only the legal conclusions to be drawn from those facts remain. Accordingly, summary judgment on fair use is appropriate. Fitzgerald , 491 F. Supp. 2d at 183. In Defendant’s brief, Defendant seeks to create issues of material fact by listing a series of arguments that are totally lacking in any evidentiary support, are nothing but conclusory statements, and, in many instances, are simply not relevant to the question of fair use. Defendant’s asserted disputed issues are:
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Whether Defendant’s conduct in uploading and downloading sound recordings through a P2P network was commercial in nature. (Opposition at 5-6.);
Whether Defendant’s purpose was educational because he wanted to learn about the music and share knowledge with friends. (Opposition at 6.);
Whether the sound recordings’ existence on the Internet in .mp3 files which Defendant could obtain changed the nature of the sound recordings. (Opposition at 6.);
Whether Defendant infringed an entire copyrighted work by copying single songs. (Opposition at 6.);
Whether Defendant’s conduct had any discernable effect on the market for Plaintiffs’ legitimate sound recordings. (Opposition at 6-9);
Whether Plaintiffs assumed the risk by releasing the sound recordings when they knew that music fans might upload the recordings to the Internet. (Opposition at 9.);
Whether Plaintiffs’ marketing activities contributed to the attractiveness of downloading and uploading the recordings. (Opposition at 9.);
Whether the relative unattractiveness of permitted alternatives rendered legitimate recordings unavailable. (Opposition at 9-10);
Whether it is fair to impose on parents the need to police their children’s activities and live in fear that their children will fail to follow a rule they neither understand nor agree with. (Opposition at 8.);
Whether it is fair to impose on schools and universities the necessity to enforce rules that run contrary to their educational mission and constrain the efficiency and experimental reach of their information systems. (Opposition at 9.);
Whether the alleged disproportion of the legal cause of action and the threat of statutory damages to the magnitude of Defendant’s actions renders his use fair. (Opposition at 10.). These arguments, as described below, have no merit and do not create a disputed issue of
fact sufficient to survive summary judgment. 1.
Whether Defendant’s conduct in uploading and downloading sound recordings through a P2P network was commercial in nature. Defendant argues that there is a disputed issue as to whether his conduct is commercial.
But there is no dispute as to what he did. Indeed, Defendant admits using KaZaA to download
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the copyrighted recordings without paying for them and, in exchange, to distribute the recordings to others. See SOF at ¶11 (“Defendant used the KaZaA program on his computer and the sublimeguy14@KaZaA user name to download songs from other KaZaA users on the Internet”); SOF at ¶12 (“Defendant understood that other users of KaZaA could download files from his shared folder and saw from the KaZaA ‘traffic tab’ on his computer that other KaZaA users were downloading files from his KaZaA shared folder.”); SOF at ¶14 (“Defendant used Napster prior to using KaZaA and, when Napster was shut down, he switched to KaZaA because he continued to want a source for downloading music without paying for it.”); SOF at ¶¶1, 10 (Defendant was distributing 816 audio files from his KaZaA shared folder to all of the KaZaA users); SOF at ¶15 (“The whole purpose behind P2P networks such as KaZaA is to allow users to share files with other users for free.”). As the only dispute here is the Court’s legal interpretation of Defendant’s actions, summary judgment is appropriate. Moreover, as demonstrated in Plaintiffs’ Motion, the Copyright Act itself concludes that conduct such as Defendant’s is commercial in nature. See 17 U.S.C. § 101 (defining “financial gain” as the “expectation of receipt, of anything of value, including the receipt of other copyrighted works). Similarly, case law make clear that Defendant is a commercial user. See A&M Records v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (file trading by Napster users constituted a “commercial use” for purposes of the fair use analysis); BMG Music v. Gonzalez, 430 F.3d 888, 891 (7th Cir. 2005) (rejecting individual P2P user’s claim that she was a non-profit user). Accordingly, the Court should conclude that Defendant’s actions were commercial.
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2.
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Whether Defendant’s purpose was educational because he wanted to learn about the music and share knowledge with friends. Defendant argues that there is a disputed issue as to whether his purpose was educational.
Opposition at 6. But again, there is no dispute as to what Defendant did. Defendant admits using KaZaA because he wanted “a source for downloading music without paying for it,” SOF at ¶14, and that he “wanted to learn about the music.” These facts, even if true, do not make his purpose “educational.” To be educational under the fair use test, the defendant must have used the copyrighted material in some sort of pedagogical context (typically a class, essay book, op ed, etc.) to discuss the material itself or to illustrate some other point. The key is that the material is used along with some form of commentary. Simply passing along a complete copy of a sound recording without comment so that others may also enjoy it for free is not “educational.” Further, any claim that Defendant’s use was educational is vitiated by the fact that Defendant not only downloaded complete copyrighted sound recordings, but also distributed them to millions of KaZaA users without commentary. 3.
Whether the sound recordings’ existence on the Internet in .mp3 files which Defendant could obtain changed the nature of the sound recordings. Defendant appears to argue that the copies of sound recordings he downloaded and
distributed were “freely available on the Internet” in the .mp3 format, and therefore, such copies are not entitled to copyright protection. (Opposition at 6.). This argument fails to recognize that the analysis of “the nature” of the copyrighted work looks to the substance of the underlying work (for example, is it a work entirely created by the author or is it a knockoff of an original piece), not the format of the work. It is undisputed that Defendant downloaded and distributed Plaintiffs’ copyrighted sound recordings in some file format and such recordings were identical to the works commercially distributed by Plaintiffs. SOF at ¶11 (“Defendant used the KaZaA program on his computer and the sublimeguy14@KaZaA user name to download songs from 6 #1419607 v1 den
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other KaZaA users on the Internet”); SOF at ¶12 (“Defendant understood that other users of KaZaA could download files from his shared folder and saw from the KaZaA ‘traffic tab’ on his computer that other KaZaA users were downloading files from his KaZaA shared folder.”). Defendant does not – and indeed cannot - offer support for his apparent argument that sound recordings in .mp3 form on the Internet are somehow no longer creative in nature nor subject to copyright protection. To the contrary, cases involving sound recordings on the Internet have unanimously held that the recordings are creative in nature and that this factor favors the copyright holder. “The creative recordings here being copied are ‘close[] to the core of intended copyright protection,’ and, conversely, far removed from the more factual or descriptive work more amenable to fair use.’” UMG Recordings, 92 F. Supp. 2d at 351 (S.D.N.Y. 2000) (citing Campbell, 510 U.S. at 586); Napster, 239 F.3d at 1016 (“plaintiffs’ ‘copyrighted musical compositions and sound recordings are creative in nature . . . which cuts against a finding of fair use under the second factor’”) (citation omitted). 4.
Whether Defendant infringed an entire copyrighted work by copying single songs. Defendant suggests that because he infringed single songs, not whole albums, he did not
infringe entire copyrighted works. (Opposition at 6.) As Defendant does not dispute that he infringed entire songs, there is no disputed issue of material fact – only the legal significance of that fact – summary judgment is appropriate. Defendant, however, is also wrong on the law. The Copyright Act unambiguously provides that a “compilation, [is] composed of ‘separate and independent works.’” Country Road Music v. MP3.com, Inc., 279 F. Supp.2d 325, 332 (S.D.N.Y. 2003) (citing 17 U.S.C.A. § 101 (West Supp. 2003)); see H.R. Rep. No. 1476, 94th Cong., 2d Sess. at 162 (1970) (showing that Congress intended to draw a sharp distinction between the number of “works” and the number of registrations.). Indeed, in Venegas7 #1419607 v1 den
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Hernandez v. Sonolux Records, 370 F.3d 183 (1st Cir. 2004), the First Circuit held that each sound recording is a separate copyrighted work. See BMG Music v. Gonzalez, 430 F.3d 888, 890 (7th Cir. Ill. 2005) (In evaluating the amount and substantiality of use in action against individual P2P user, the court held that “she downloaded (and kept) whole copyrighted songs (for which, as with poetry, copying of more than a couplet or two is deemed excessive”)). See also Atlantic Recording Corp. v. Anderson, 2008 U.S. Dist. LEXIS 53654 (S.D. Tex. Mar. 12, 2008) (granting summary judgment and awarding record company plaintiffs statutory damages for each recording infringed where the respective albums were registered as compilations); Elektra Entm’t Group, Inc. v. Bryant, 2004 U.S. Dist. LEXIS 26700 (C.D. Cal. Feb. 13, 2004) (same); Priority Records LLC v. Knox, 2008 U.S. Dist. LEXIS 1141 ( E.D. Mich. Jan. 8, 2008) (same). Moreover, although Plaintiffs have chosen not to sue on every infringed track, that does not mean that Defendant infringed only one track from the relevant albums. In fact, Defendant previously admitted sharing entire albums. (J. Tenenbaum Dep. Vol. II at 60:23 – 61:4, excerpts attached as Exhibit A). Unsurprisingly, Exhibit B to the Complaint shows that Defendant was distributing complete albums and large percentages of albums.2 5.
Whether Defendant’s conduct had any discernable effect on the market for Plaintiffs’ legitimate sound recordings. Defendant argues that Plaintiffs have shown no discernable actual effect from
Defendant’s infringement. (Opposition at 6-9). First, Defendant misstates the standard. To demonstrate entitlement to summary judgment, Plaintiffs do not have to show that Defendant’s
2
For example, all 13 sound recordings on Limp Bizkit’s Three Dollar Bill, Yall$ album and 15 of the 16 recordings from Limp Bizkit’s Rearragned album were in Defendant’s shared folder when he was caught infringing. See Exhibit B to Complaint. Similarly, all 12 sound recordings on Blink 182’s Enema of the State album were in Defendant’s shared folder. See id. Also, 11 of the 18 sound recordings from Eminem’s Marshall Mathers LP album were in Defendant’s shared folder. See id. 8 #1419607 v1 den
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conduct had a discernable effect on the market. To the contrary, Defendant, as the proponent of the affirmative defense, bears the burden of demonstrating that, if the conduct became widespread, it would not have any effect on the legitimate markets – existing or potential – for Plaintiffs’ copyrighted works. Harper & Row, 471 U.S. at 568. Defendant offers no evidence to dispute the expert report of Stan Liebowitz, who noted that illegal file-sharing alternatives merely leech off the efforts of others who actually create the music to which the public wishes to listen. (Declaration and Report of S. Liebowitz at 9, ¶¶ 4142). In response, Defendant offers only an introduction from the Oberholzer-Gee study. Opposition at 8. Mr. Oberholzer-Gee has not been named as an expert in this case, his opinion has not been subject to cross-examination, and his study is not properly before the Court. Nonetheless, even if it were properly before the Court, the introduction simply says that society has benefitted from P2P networks and that, despite P2P’s weakening of copyright protections, artists continue to produce creative works. Id. This does nothing to establish that widespread P2P use does not harm the market for legitimate recordings. That society may benefit from increased access to copyrighted works does not render a use fair, Harper & Row, 471 U.S. at 569, nor disprove harm to a market. Moreover, the introduction even admits that “file-sharing disrupted some traditional business models in the creative industries, foremost in music.” Opposition at 8. Accordingly, the introduction acknowledges that P2P has had a disruptive effect on the market for legitimate sound recordings. This is not a case of competing business models, as Defendant claims, but a situation in which a legitimate market has been upended by rampant copying and distribution of sound recordings for free. (Declaration and Report of S. Liebowitz at 9, ¶¶ 41-42)
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Finally, Plaintiffs addressed Defendant’s “sampling” argument in their Motion. Indeed, the Seventh Circuit squarely rejected Defendant’s “sampling” argument, i.e., that his downloading should be considered fair use because he “sampled” at least one of the songs at issue and later purchased the song. (J. Tenenbaum Dep. Vol. II at 108:23 to 109:20). This “trybefore-you-buy” argument simply does not hold water because “many people are bound to keep the downloaded files without buying originals.” Gonzalez, 430 F.3d at 890. As part of the court’s analysis, Judge Easterbrook distinguished alleged file sharing sampling from the authorized previews of sound recordings that are available to consumers. Unlike illegal file sharing, authorized previews “share the feature of evanescence: if a listener decides not to buy (or stops paying the rental fee), no copy remains behind.” Id. at 891. Here, Defendant did not delete the copies he downloaded to “sample” because they were all found in his shared folder. Moreover, Defendant’s sampling argument ignores completely the fact that Defendant not only downloaded these sound recordings, he maintained them, burned them to CDRs, and also distributed them to other KaZaA users. Sampling can in no way excuse these behaviors. 6.
Whether Plaintiffs assumed the risk by releasing the sound recordings when they knew that music fans might upload the recordings to the Internet. Defendant appears to be arguing, for the first time, an affirmative defense of assumption
of the risk under the guise of a new fairness factor. First, the deadline to amend Defendant’s Answer to add an affirmative defense has long since passed. Second, the argument is patently absurd. The Copyright Act does not demand that a copyright owner take particular steps to limit access to or reproduction of its works in order to enjoy full protection. As this argument, if accepted, would discourage copyright holder’s from publishing any works that could potentially be infringed, it clearly runs contrary to the purposes of the Copyright Act and should be rejected. 7.
Whether Plaintiffs’ marketing activities contributed to the attractiveness of downloading and uploading the recordings. 10
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Defendant seems to be arguing that if Plaintiffs’ aggressively market a recording, it would be unfair to punish a music fan for infringing it. (Opposition at 9.) If accepted, Defendant’s argument would give a carte blanche to infringe the recordings in which Plaintiffs invest substantial resources to market, effectively destroying all copyright protection for the recordings Plaintiffs value most. Such an absurd proposition does not create a disputed issue of material fact. 8.
Whether the relative unattractiveness of permitted alternatives rendered legitimate recordings unavailable. Defendant argues that because he was forced to choose between illegally downloading a
single sound recording or purchasing an entire CD, the copyrighted sound recordings were effectively unavailable, thus rendering his use fair. Opposition at 9-10. Defendant’s “availability” argument fails on the law and the undisputed facts. While the Supreme Court has never formally adopted this consideration as one that favors an alleged infringer, it has nonetheless suggested that reference to a work’s availability is appropriate. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 553 (“‘If the work is “out of print” and unavailable for purchase through normal channels, the user may have more justification for reproducing it.’”) (quoting Senate Report); see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264, n. 8 (2d Cir. 1986), Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1176 n.14 (5th Cir. 1980) (“[I]f the copyrighted work is out of print and cannot be purchased, a user may be more likely to prevail on a fair use defense.”). However, both the Senate Report cited in Harper & Row and cases discussing “availability” in the fair use context make clear that a work is unavailable when it cannot be obtained through normal channels of commerce, such as book that is out of print, or a movie that is not generally distributed. Duffy v. Penguin Books USA, 4 F. Supp. 2d 268, 275 (S.D.N.Y.
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1998) (“Because Fashion Formula was out-of-print at the time, Nanfeldt was unable to purchase the book. Thus, Duffy lost nothing as a result of Nanfeldt’s decision to photocopy portions of the book.”); Hofheinz v. A&E TV Networks, 146 F. Supp. 2d 442, 447-48 (S.D.N.Y. 2001) (movie was unavailable where film not in general circulation and only leased for showings at sciencefiction film festivals and the like). By contrast, mere inconvenience or unavailability in an infringer’s preferred form do not render an item unavailable. Encyclopedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156, 1177 (W.D.N.Y. 1982). The fact that Defendant may have had to purchase an entire album in order to get his favorite track did not render the track unavailable. “Copyright is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders’ property interests.” UMG Recordings, 92 F. Supp. 2d at 352 (rejecting defendant’s proposed fair use factor that it “provides a useful service to consumers that, in its absence, will be served by ‘pirates.’”). Moreover, Plaintiffs’ choice of media “does not abrogate their rights as copyright holders.” See Encyclopedia Britannica, 542 F. Supp. at 1180 (entering summary judgment on fair use and rejecting defendant’s additional factors). Moreover, Defendant’s factual premise is simply untrue. Every one of the 30 sound recordings at issue was available for digital download by track by 2004, and all but one was available in 2003. See Plaintiffs’ Response to Defendant’s Fair Use Interrogatories, attached as Exhibit B. 9.
Whether it is fair to impose on parents the need to police their children’s activities and live in fear that their children will fail to follow a rule they neither understand nor agree with. Defendant argues that the Copyright Act’s imposition on parents should somehow be a
factor rendering his use fair. (Opposition at 8.) However, that assertion has nothing to do with the facts of this case and does not create a disputed issue of material fact. This action is against 12 #1419607 v1 den
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Defendant Joel Tenenbaum, who was a twenty year old college student when he was caught infringing Plaintiffs’ copyrighted works. The Copyright Act imposes no need on parents to police the online activities of a grown man. 10.
Whether it is fair to impose on schools and universities the necessity to enforce rules that run contrary to their educational mission and constrain the efficiency and experimental reach of their information systems. Defendant similarly argues that the Copyright Act’s imposition on school and universities
should somehow be a factor rendering his use fair. (Opposition at 9.) However, that assertion has nothing to do with the facts of this case and does not create a disputed issue of material fact. Defendant was caught infringing while connected to a Cox Communications Internet account while home from college for the summer. SOF ¶8. While Defendant may also have violated his college’s policies by using its network to infringe copyrighted sound recordings, that is not relevant to the case at bar. Similarly, while Plaintiffs could engage Defendant’s counsel in an interesting debate on whether universities’ educational missions do, or should, include teaching respect for intellectual property, that is not relevant to the issue before the Court. 11.
Whether the alleged disproportion of the legal cause of action and the threat of statutory damages to the magnitude of Defendant’s actions renders his use fair. Finally, Defendant believes that this action is unfair and that the statutory damages
scheme is unconstitutionally disproportionate. Opposition at 10. However, this is not a question of fact, but a question of law to be determined by the Court. The Court has noted that Defendant’s constitutional challenge will not become ripe unless and until the jury awards damages against Defendant. Similarly, Defendant’s attempt to disguise his abuse of process counterclaim as a new fair use factor is improper and should be rejected, as the Court previously ruled. See June 15, 2009 Minute Order (“Even if the Court views file-sharing lawsuits as unwise and the statutory
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penalties a remarkably poor policy judgment, the objectives sought by this suit are well within those contemplated by Congress and the Copyright Act, 17 U.S.C. s. 101 et seq.). As Defendant has not established any disputed issues of material fact, summary judgment should be entered in Plaintiffs’ favor CONCLUSION As there are no disputed issues of fact to be determined by the finder of fact, summary judgment should be entered on Defendant’s fair use defense. For purposes of this case, and this case alone, to the extent the Court finds an issue of triable fact and does not subsequently issue a directed verdict, Plaintiffs stipulate that the issue of fair use can be considered by the jury. Respectfully submitted this 20th day of July, 2009.
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SONY BMG MUSIC ENTERTAINMENT; WARNER BROS. RECORDS INC.; ATLANTIC RECORDING CORPORATION; ARISTA RECORDS LLC; and UMG RECORDINGS, INC. By their attorneys, By:
s/ Eve G. Burton Timothy M. Reynolds (pro hac vice) Eve G. Burton (pro hac vice) Laurie J. Rust (pro hac vice) HOLME ROBERTS & OWEN LLP 1700 Lincoln, Suite 4100 Denver, Colorado 80203 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 Email: [email protected] [email protected] [email protected] Matthew J. Oppenheim (pro hac vice) THE OPPENHEIM GROUP 7304 River Falls Drive Potomac, MD 20854 Telephone (301) 299-4986 Facsimile: (866) 766-1678 Email: [email protected] Daniel J. Cloherty DWYER & COLLORA, LLP 600 Atlantic Avenue - 12th Floor Boston, MA 02210-2211 Telephone: (617) 371-1000 Facsimile: (617) 371-1037 Email: [email protected] ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on July 20, 2009. s/ Eve G. Burton
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EXHIBIT A
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS VOLUME 1 PAGES 1-209 - - - - - - - - - - - - - - - - - - - - - - - -* CAPITOL RECORDS, INC., ET AL, Plaintiffs VS. Case No. 03CV11661-NG NOOR ALAUJAN, LEAD DOCKET NO. Defendant - - - - - -- - - - - - - - - - - - - - - - - - -* SONY BMG MUSIC ENTERTAINMENT, et al, Plaintiffs VS. Case No. 07CV11446-NG JOEL TENENBAUM, ORIGINAL DOCKET NO. Defendant - - - - - - - - - - - - - - - - - - - - - - - --*
CONTINUED DEPOSITION OF JOEL TENENBAUM, taken on behalf of the Plaintiffs, taken pursuant to Notice under the Massachusetts Rules of Civil Procedure, before Kim M. Romaine, Notary Public and Shorthand Reporter in and for the Commonwealth of Massachusetts at the Office of Dwyer & Collora, 600 Atlantic Avenue, Boston, Massachusetts, on Wednesday, July 8, 2009 commencing at 9:30 a.m.
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APPEARANCES: ON BEHALF OF PLAINTIFFS: EVE GOLDSTEIN BURTON, ESQ. Holme Roberts & Owen, LLP 4 1700 Lincoln Street Denver, Colorado 80203-4541 5 303/866-0551 6 ON BEHALF OF PLAINTIFFS: 7 MATTHEW J. OPPENHEIM, ESQ. The Oppenheim Group 8 7304 River Falls Drive Potomac, Maryland 20854 9 301/299-4986 10 ON BEHALF OF JOEL TENENBAUM: 11 CHARLES NESSON, ESQ. 1575 Massachusetts Avenue 12 Cambridge, Massachusetts 02138 617/495-4609 13 ON BEHALF OF JOEL TENENBAUM: 14 MATTHEW FEINBERG, ESQ. Feinberg Kamholtz 15 125 Summer Street Boston, Massachusetts 02110 16 617/526-0700 17 ALSO PRESENT: Isaac Meister 18 Victoria L. Steinberg, Esq. 19 20 21 22 23 24
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INDEX DEPOSITION OF: JOEL TENENBAUM EXAMINATION BY MS. BURTON ...........PAGE 4 ...........PAGE 205 EXAMINATION BY MR. FEINBERG .........PAGE 196
No. 1 2 3 4 5 6
EXHIBITS Description Page Packet 71 Letter 4/30/09 84 Schedule 1 107 Exhibit A 107 Packet 179 Packet 196
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PROCEEDINGS MR. STEINBERG: No stipulations? MS. BURTON: No stipulations. JOEL TENENBAUM, the witness, having been duly cautioned and sworn, testified upon his oath as follows: -----------EXAMINATION BY MS. BURTON: Q. Good morning, Joel. A. Good morning. Q. As you know, I'm Eve Burton. I represent the plaintiffs in this case. I deposed you last time. Maybe nine months ago or so. A. You did. Q. Is there anything in that deposition that you no longer believe to be accurate? MR. FEINBERG: Objection. Motion to strike. MS. BURTON: What? MR. FEINBERG: I said objection. Motion to strike. There are no stipulations on the record so I will objecting whenever I hear something that I do not like. MS. BURTON: Maybe I didn't Page 5
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understand. In a deposition, usually form and foundation need to be made. The rest are preserved. Is that the stipulation you were referencing? MR. FEINBERG: Yes. There is a full range of stipulations that we normally do. I don't know whether you did it before with Joel's first deposition. We usually reserve all motions to strike and all motions except as to form until the time of trial. MS. BURTON: That's fine. MR. FEINBERG: We also waive the filing and the notarization of it, but we usually have a 30-day period for Joel to read and sign the deposition and make corrections. MS. BURTON: Obviously that is not going to work here. MR. FEINBERG: We will need the deposition well in advance of the trial in order to do that. MS. BURTON: Okay. As a preliminary matter, let me back up. I do want to say that I do understand, Mr. Nesson, you are recording this deposition on your audio recorder. We do object 2 (Pages 2 to 5)
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A. No longer had utility to me. Q. Is that because of this lawsuit? A. No. Q. Why didn't that have utility to you? A. It didn't get me music. Q. Why? A. I don't know. Q. It stopped functioning? A. Yes. Q. Okay. Approximately how many songs did you download using Morpheus? A. No clue. Probably order of magnitude ten. Q. Did you ever use stream cast on the Gateway? A. No. Q. Did you ever use Grokster? A. No. Q. So do you believe you've told me every peer to peer you had on this Gateway computer? A. I do believe I have. Q. Do you believe you had all five of these peer to peers on the computer at the same time? A. I have no idea. I used whatever program seemed the most useful to me at the time. Q. What do you mean by the most useful?
A. The maximum amount of music sharing with the minimal amount of wasted effort. Q. When you were -- when LimeWire was on the Gateway but you were not actively using it, did you take steps to -- what steps, if any, did you take to shut the program down? MR. FEINBERG: Objection. You are asking him when he uninstalled it again? MS. BURTON: No. If he was not actually using it on his computer, did he click on the X? Did he file close? Did he leave it open? BY MS. BURTON: Q. What did you do with the program when it was on your computer but you were not actively using it? A. What did I do with a program when I wasn't using it? Q. So you are sitting down at your computer and you are looking for music on LimeWire and then you get up and you are done. What did you do to LimeWire? Did you shut it down? Did you leave it open? If you shut it down, how? A. I imagine it depended.
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Q. What is your standard practice when you are finished using a program? A. I close the program. Q. How do you do that? A. You select close from the menu or you click the X or you right click on the task bar and then left click on close. Q. Did you ever -A. If it's a recalcitrant program, you will control alt delete it and then you close it that way. Q. That is exactly what I'm trying to get at. Do you know how you would close LimeWire, if at all? A. Probably a variety of ways. Q. Was it your practice to leave LimeWire running while you were not using it? A. I think so. Q. Do you know what version of LimeWire you were using? A. No clue. Q. Did you ever upgrade LimeWire? A. I don't think so. Q. Was it your practice when you purchased a CD to rip it onto your computer? Page 61
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A. You mean to copy it to the computer's hard drive? Q. Yes. A. Absolutely. Q. So other than peer to peers and purchased CDs that you uploaded and music you purchased from iTunes, is there any other source of music on the Gateway? A. Yes. MR. FEINBERG: Can you say that again? Other than what? MS. BURTON: Other than music he purchased from iTunes, music he got from peer to peers and CD he purchased and unloaded how else did music get on his computer. A. Through face-to-face interactions with friends. Q. I don't understand that. A. The music can get onto the computer by either using a program, whether it be a peer to peer program or a network neighborhood type thing. I can also get it by buying the physical product but buying it on iTunes. Also a friend could share it with me through either a CD or a USB or 16 (Pages 58 to 61)
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1 Q. Okay. That would include -- let me just be 2 clear. Do you contend that all of the movies you 3 downloaded, copyrighted movies you downloaded 4 through peer to peer networks, that downloading 5 was fair use? 6 MR. FEINBERG: Objection. I am going 7 to instruct him not to answer that. That is way 8 beyond the scope of this. There is nothing in 9 the complaint and nothing in any of the pleadings 10 that has to do with movies. 11 MR. OPPENHEIM: Answer the question. 12 MR. FEINBERG: I've already told him 13 not to answer the question. 14 MR. OPPENHEIM: It's not a privileged 15 objection. You can't instruct him. 16 MR. FEINBERG: Really? Take it to 17 the judge. 18 MR. OPPENHEIM: Can you mark this 19 please. This is unbelievable. 20 BY MS. BURTON: 21 Q. Do you contend that all of the TV episodes 22 that you downloaded using the peer to peer 23 network was fair use? 24 MR. FEINBERG: Same instruction.
MS. BURTON: You are instructing him not to answer? MR. FEINBERG: Yes. (Exhibit Nos. 3 and 4 marked for identification). BY MS. BURTON: Q. Do you contend that your downloading of the five recordings listed on Exhibit 4 was fair use? A. Yes. Q. Do you contend that your distribution of the five sound recordings listed on deposition Exhibit 4 was fair use? A. Yes. Q. Do you have any basis to -- is there any -does the basis of your fair use defense differ as to any of these songs on deposition Exhibit 4? A. You mean differ by a song? Q. In any respect. MR. FEINBERG: She is asking you whether or not you have a different nuance of the fair use defense as to each individual song or is it all the same defense. A. Again, it's all a matter of the four factors, plus other factors that we think are appropriate
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for consideration. Q. And do they vary based on which of the recordings we are talking about on deposition Exhibit 4? A. I think so. Q. Okay. What is the basis of your fair use defense as it pertains to Incubus, recording title New Skin, album title Science? A. I will simplify the whole process here. I think the first four are the same. Nirvana Come as You Are might fall under fair use in a different way. Q. How? A. I own the album. Q. So am I understanding you correctly that all five songs listed on deposition Exhibit 4, the basis of your fair use defense is the same except as to Nirvana; there is this additional aspect that you own the album? MR. FEINBERG: Objection to the form. You can try to answer that if you can. A. Yes. Q. Okay. And how does the fact that you own the album pertain to your fair use defense? Page 109
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A. As a question of sampling and purchase of commerciality, of money spent, I think it's relevant that I purchased the album of at least one of these songs. Q. And so you listed the four things: Sampling, purchase, commerciality and money spent. How does the fact that you own the album pertain to your -- do you contend that sampling is a factor in fair use? A. I'm not that well versed in fair use. I don't know the specifics or the limit or the full extent. I don't have all of it in my head. Q. I'm just trying to understand what you are telling me. You say that the fact that you own the album pertains to your fair use defense. Actually, I will break it down. Does the fact that you own the album pertain to your fair use defense as applied to downloading of the recording? A. Yes. Q. Does the fact that you own the album pertain to the fair use of your distribution of the recording? A. I think so. 28 (Pages 106 to 109)
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BY MS. BURTON: Q. When did you first use iTunes? A. I don't know. Q. Can you approximate? A. I would guess in the second half of college. Q. 2004, 2005, is that right? A. I think it would be more likely 2005 through 2006. Q. Before you downloaded a sound recording through a peer to peer network, did you go and look if you could get it anywhere on a legal alternative? A. Sorry? Q. Before you downloaded a sound recording on a peer to peer network did you first go and check if it was available through a legitimate authorized service? A. The majority of what was downloaded on peer to peer networks was available in a record store or amazon if amazon was around then. Q. So you know the records were available. Could you download individual tracks online legally? A. It's possible I could have. I don't know if I was aware of it at the time.
Q. What is in fact my question. Before you downloaded these -- we will start with Exhibit 4. These five sound recordings on Exhibit 4 did you first go and check whether there were any digital authorized alternatives for which -- on which you could download these tracks? A. You mean individually? Q. Yes. A. I don't remember if I checked, if I knew. Q. Do you believe that you checked if there were legal alternatives available before downloading the five recordings on Exhibit 4? A. It very much depends on how much I knew about iTunes at the time. I don't recall when I learned about iTunes, when I downloaded and signed up with iTunes. Q. Do you know whether the five recordings listed on Exhibit 4 were available on iTunes in August of 2004? A. I have no clue. Q. Would that impact your fair use defense? A. If I was aware if these were available on iTunes? Q. If they were available on iTunes.
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A. It's possible the actual availability of these songs plays a factor as much as my awareness of that availability. Q. The question is did you believe. And your answer is it's possible? A. Those are not things I've considered in great detail. Q. I'm asking you to consider it now. Do you believe that the availability of these songs on iTunes, the songs listed on Exhibit 4 has an impact on your fair use defense? MR. FEINBERG: I will stop him. It's the same question. I think it's now five or six times. You have asked the same question. I will instruct him not to answer it. You can take it up with the judge. BY MS. BURTON: Q. What are the facts that support your fair use defense? A. The context of my downloading and distributing music, the laws as are written on books, anything else that goes into a legal proceeding that is a relevant fact. Q. I'm asking you what those facts are? Page 125
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A. Well, those are what I can recall specifically. Q. So the context, what do you mean by that? A. When and where and how much and the commerciality, whether I had purchased music through pay sources. Q. What do you mean by when? A. Any number of other factors. My state of mind at the time of downloading. Q. So your -A. My awareness. MR. FEINBERG: I would like to take a bathroom break at some point. THE WITNESS: I have to too. BY MS. BURTON: Q. Finish your answer and then we will take a break. A. The state of the music industry, its change, my music buying and music downloading habits, my discussion of the music with friends and family, the sales and revenues of those songs. Possibly other things I can't recall right now. Q. Is that a complete list to the best of your knowledge? 32 (Pages 122 to 125)
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CAPITOL RECORDS, INC., et al., Plaintiffs, v. NOOR ALAUJAN, Defendant.
) ) ) ) ) ) ) ) )
) SONY BMG MUSIC ENTERTAINMENT, ) et al., Plaintiffs, ) ) v. ) ) JOEL TENENBAUM, ) ) Defendant. ) )
Civ. Act. No. 03-cv-11661-NG (LEAD DOCKET NUMBER)
Civ. Act. No. 07-cv-11446-NG (ORIGINAL DOCKET NUMBER)
PLAINTIFFS’ RESPONSE TO COURT’S JULY 14, 2009 ORDER REGARDING FAIR USE ISSUES In its July 14, 2009 Order, the Court invited the parties to brief “whether fair use was historically treated as an equitable defense, and if so, whether it is properly decided by a judge or jury.” (Doc. 880, at 2). As described below, Plaintiffs respectfully submit that this is not necessary because the Court should resolve this issue on summary judgment. Neither of Defendant’s two opposition briefs1 raises any issue of material fact. While the parties may 1
Defendant filed his Opposition on July 17, 2009 (doc. 889) and filed a “Memorandum of Law to Supplement Defendant’s Opposition” on July 20, 2009 (doc. 890), three days after the deadline to file oppositions to summary judgment. See June 16, 2009 Order (Doc. 850) (Setting July 17, 2009 as deadline for oppositions to summary judgment).
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disagree as to which factors should be considered in the determination of fair use, there is no disagreement as to the underlying facts themselves. Accordingly, judgment should be entered as a matter of law on Defendant’s fair use defense. As the Court is aware from its Order, there is a long history to the fair use doctrine. Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841); Backus v. Gould, 7 How. 798, 12 L. Ed. 919 (1849); Feltner v. Columbia Pictures Telev. Inc., 523 U.S. 354 (1998); Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 561 (1985); Campbell v. Acuff-Rose Music, 510 U.S. 569, 590 (1994); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, U. PA. L.R. 549 (2008); Pierre N. Leval, Fair Use Rescued, 44 U.C.L.A. L. REV. 1449, 1456–1457 (1997); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV.L. REV. 1105 (1990). In his Response to the Court’s Order, Defendant has taken the position that disputed issues of material fact are to be determined by the jury. Without expanding on the extensive history of fair use, for purposes of this case, and this case alone, to the extent the Court finds an issue of triable fact and does not subsequently issue a directed verdict, Plaintiffs stipulate that the issue of fair use can be considered by the jury. SUMMARY JUDGMENT ON FAIR USE IS APPROPRIATE Plaintiffs respectfully submit that whether fair use is properly decided by the judge or jury is of no moment in this case. Indeed, as demonstrated in Plaintiffs’ Memorandum In Support of their Motion for Summary Judgment (doc. 872), there are no disputed issues of material fact to be determined by the finder of fact and judgment should enter in Plaintiffs’ favor as a matter of law. In fact, every court to rule on fair use in the P2P filesharing context has rejected it as a matter of law. (See id. at 10). Because Defendant fails all four statutory factors and his proposed additional factors have either been rejected as a matter of law or must be
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rejected as patently absurd, the Court should enter judgment in Plaintiffs’ favor on Defendant’s fair use defense. See Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119, 1120 (9th Cir. 1997) (“‘Fair use is a mixed question of law and fact.’ If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” (citing Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 559 (1985) (other citations omitted)); accord Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177, 183 (D. Mass. 2007) (“Fair use determinations usually present mixed questions of fact and law. However, where ‘no material historical facts are at issue’ and ‘[t]he parties dispute only the ultimate conclusions to be drawn from the admitted facts,’ fair use can be decided by the Court.”) (citation omitted). Accordingly, there is nothing for the finder of fact to decide and it does not matter whether fair use belongs to the judge or jury. On July 17, 2009, Defendant filed his Opposition to Plaintiffs’ Motion for Summary Judgment. But, Defendant’s Opposition fails to contest a single fact designated on Plaintiffs’ Statement of Material Facts. Accordingly, each of the facts on Plaintiffs’ Statement of Material Facts is deemed admitted. Mass. L.R. 56.1. As the underlying facts are not in dispute, only the legal conclusions to be drawn from those facts remain. Accordingly, summary judgment on fair use is appropriate. Fitzgerald , 491 F. Supp. 2d at 183. In Defendant’s brief, Defendant seeks to create issues of material fact by listing a series of arguments that are totally lacking in any evidentiary support, are nothing but conclusory statements, and, in many instances, are simply not relevant to the question of fair use. Defendant’s asserted disputed issues are:
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Whether Defendant’s conduct in uploading and downloading sound recordings through a P2P network was commercial in nature. (Opposition at 5-6.);
Whether Defendant’s purpose was educational because he wanted to learn about the music and share knowledge with friends. (Opposition at 6.);
Whether the sound recordings’ existence on the Internet in .mp3 files which Defendant could obtain changed the nature of the sound recordings. (Opposition at 6.);
Whether Defendant infringed an entire copyrighted work by copying single songs. (Opposition at 6.);
Whether Defendant’s conduct had any discernable effect on the market for Plaintiffs’ legitimate sound recordings. (Opposition at 6-9);
Whether Plaintiffs assumed the risk by releasing the sound recordings when they knew that music fans might upload the recordings to the Internet. (Opposition at 9.);
Whether Plaintiffs’ marketing activities contributed to the attractiveness of downloading and uploading the recordings. (Opposition at 9.);
Whether the relative unattractiveness of permitted alternatives rendered legitimate recordings unavailable. (Opposition at 9-10);
Whether it is fair to impose on parents the need to police their children’s activities and live in fear that their children will fail to follow a rule they neither understand nor agree with. (Opposition at 8.);
Whether it is fair to impose on schools and universities the necessity to enforce rules that run contrary to their educational mission and constrain the efficiency and experimental reach of their information systems. (Opposition at 9.);
Whether the alleged disproportion of the legal cause of action and the threat of statutory damages to the magnitude of Defendant’s actions renders his use fair. (Opposition at 10.). These arguments, as described below, have no merit and do not create a disputed issue of
fact sufficient to survive summary judgment. 1.
Whether Defendant’s conduct in uploading and downloading sound recordings through a P2P network was commercial in nature. Defendant argues that there is a disputed issue as to whether his conduct is commercial.
But there is no dispute as to what he did. Indeed, Defendant admits using KaZaA to download
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the copyrighted recordings without paying for them and, in exchange, to distribute the recordings to others. See SOF at ¶11 (“Defendant used the KaZaA program on his computer and the sublimeguy14@KaZaA user name to download songs from other KaZaA users on the Internet”); SOF at ¶12 (“Defendant understood that other users of KaZaA could download files from his shared folder and saw from the KaZaA ‘traffic tab’ on his computer that other KaZaA users were downloading files from his KaZaA shared folder.”); SOF at ¶14 (“Defendant used Napster prior to using KaZaA and, when Napster was shut down, he switched to KaZaA because he continued to want a source for downloading music without paying for it.”); SOF at ¶¶1, 10 (Defendant was distributing 816 audio files from his KaZaA shared folder to all of the KaZaA users); SOF at ¶15 (“The whole purpose behind P2P networks such as KaZaA is to allow users to share files with other users for free.”). As the only dispute here is the Court’s legal interpretation of Defendant’s actions, summary judgment is appropriate. Moreover, as demonstrated in Plaintiffs’ Motion, the Copyright Act itself concludes that conduct such as Defendant’s is commercial in nature. See 17 U.S.C. § 101 (defining “financial gain” as the “expectation of receipt, of anything of value, including the receipt of other copyrighted works). Similarly, case law make clear that Defendant is a commercial user. See A&M Records v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (file trading by Napster users constituted a “commercial use” for purposes of the fair use analysis); BMG Music v. Gonzalez, 430 F.3d 888, 891 (7th Cir. 2005) (rejecting individual P2P user’s claim that she was a non-profit user). Accordingly, the Court should conclude that Defendant’s actions were commercial.
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Whether Defendant’s purpose was educational because he wanted to learn about the music and share knowledge with friends. Defendant argues that there is a disputed issue as to whether his purpose was educational.
Opposition at 6. But again, there is no dispute as to what Defendant did. Defendant admits using KaZaA because he wanted “a source for downloading music without paying for it,” SOF at ¶14, and that he “wanted to learn about the music.” These facts, even if true, do not make his purpose “educational.” To be educational under the fair use test, the defendant must have used the copyrighted material in some sort of pedagogical context (typically a class, essay book, op ed, etc.) to discuss the material itself or to illustrate some other point. The key is that the material is used along with some form of commentary. Simply passing along a complete copy of a sound recording without comment so that others may also enjoy it for free is not “educational.” Further, any claim that Defendant’s use was educational is vitiated by the fact that Defendant not only downloaded complete copyrighted sound recordings, but also distributed them to millions of KaZaA users without commentary. 3.
Whether the sound recordings’ existence on the Internet in .mp3 files which Defendant could obtain changed the nature of the sound recordings. Defendant appears to argue that the copies of sound recordings he downloaded and
distributed were “freely available on the Internet” in the .mp3 format, and therefore, such copies are not entitled to copyright protection. (Opposition at 6.). This argument fails to recognize that the analysis of “the nature” of the copyrighted work looks to the substance of the underlying work (for example, is it a work entirely created by the author or is it a knockoff of an original piece), not the format of the work. It is undisputed that Defendant downloaded and distributed Plaintiffs’ copyrighted sound recordings in some file format and such recordings were identical to the works commercially distributed by Plaintiffs. SOF at ¶11 (“Defendant used the KaZaA program on his computer and the sublimeguy14@KaZaA user name to download songs from 6 #1419607 v1 den
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other KaZaA users on the Internet”); SOF at ¶12 (“Defendant understood that other users of KaZaA could download files from his shared folder and saw from the KaZaA ‘traffic tab’ on his computer that other KaZaA users were downloading files from his KaZaA shared folder.”). Defendant does not – and indeed cannot - offer support for his apparent argument that sound recordings in .mp3 form on the Internet are somehow no longer creative in nature nor subject to copyright protection. To the contrary, cases involving sound recordings on the Internet have unanimously held that the recordings are creative in nature and that this factor favors the copyright holder. “The creative recordings here being copied are ‘close[] to the core of intended copyright protection,’ and, conversely, far removed from the more factual or descriptive work more amenable to fair use.’” UMG Recordings, 92 F. Supp. 2d at 351 (S.D.N.Y. 2000) (citing Campbell, 510 U.S. at 586); Napster, 239 F.3d at 1016 (“plaintiffs’ ‘copyrighted musical compositions and sound recordings are creative in nature . . . which cuts against a finding of fair use under the second factor’”) (citation omitted). 4.
Whether Defendant infringed an entire copyrighted work by copying single songs. Defendant suggests that because he infringed single songs, not whole albums, he did not
infringe entire copyrighted works. (Opposition at 6.) As Defendant does not dispute that he infringed entire songs, there is no disputed issue of material fact – only the legal significance of that fact – summary judgment is appropriate. Defendant, however, is also wrong on the law. The Copyright Act unambiguously provides that a “compilation, [is] composed of ‘separate and independent works.’” Country Road Music v. MP3.com, Inc., 279 F. Supp.2d 325, 332 (S.D.N.Y. 2003) (citing 17 U.S.C.A. § 101 (West Supp. 2003)); see H.R. Rep. No. 1476, 94th Cong., 2d Sess. at 162 (1970) (showing that Congress intended to draw a sharp distinction between the number of “works” and the number of registrations.). Indeed, in Venegas7 #1419607 v1 den
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Hernandez v. Sonolux Records, 370 F.3d 183 (1st Cir. 2004), the First Circuit held that each sound recording is a separate copyrighted work. See BMG Music v. Gonzalez, 430 F.3d 888, 890 (7th Cir. Ill. 2005) (In evaluating the amount and substantiality of use in action against individual P2P user, the court held that “she downloaded (and kept) whole copyrighted songs (for which, as with poetry, copying of more than a couplet or two is deemed excessive”)). See also Atlantic Recording Corp. v. Anderson, 2008 U.S. Dist. LEXIS 53654 (S.D. Tex. Mar. 12, 2008) (granting summary judgment and awarding record company plaintiffs statutory damages for each recording infringed where the respective albums were registered as compilations); Elektra Entm’t Group, Inc. v. Bryant, 2004 U.S. Dist. LEXIS 26700 (C.D. Cal. Feb. 13, 2004) (same); Priority Records LLC v. Knox, 2008 U.S. Dist. LEXIS 1141 ( E.D. Mich. Jan. 8, 2008) (same). Moreover, although Plaintiffs have chosen not to sue on every infringed track, that does not mean that Defendant infringed only one track from the relevant albums. In fact, Defendant previously admitted sharing entire albums. (J. Tenenbaum Dep. Vol. II at 60:23 – 61:4, excerpts attached as Exhibit A). Unsurprisingly, Exhibit B to the Complaint shows that Defendant was distributing complete albums and large percentages of albums.2 5.
Whether Defendant’s conduct had any discernable effect on the market for Plaintiffs’ legitimate sound recordings. Defendant argues that Plaintiffs have shown no discernable actual effect from
Defendant’s infringement. (Opposition at 6-9). First, Defendant misstates the standard. To demonstrate entitlement to summary judgment, Plaintiffs do not have to show that Defendant’s
2
For example, all 13 sound recordings on Limp Bizkit’s Three Dollar Bill, Yall$ album and 15 of the 16 recordings from Limp Bizkit’s Rearragned album were in Defendant’s shared folder when he was caught infringing. See Exhibit B to Complaint. Similarly, all 12 sound recordings on Blink 182’s Enema of the State album were in Defendant’s shared folder. See id. Also, 11 of the 18 sound recordings from Eminem’s Marshall Mathers LP album were in Defendant’s shared folder. See id. 8 #1419607 v1 den
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conduct had a discernable effect on the market. To the contrary, Defendant, as the proponent of the affirmative defense, bears the burden of demonstrating that, if the conduct became widespread, it would not have any effect on the legitimate markets – existing or potential – for Plaintiffs’ copyrighted works. Harper & Row, 471 U.S. at 568. Defendant offers no evidence to dispute the expert report of Stan Liebowitz, who noted that illegal file-sharing alternatives merely leech off the efforts of others who actually create the music to which the public wishes to listen. (Declaration and Report of S. Liebowitz at 9, ¶¶ 4142). In response, Defendant offers only an introduction from the Oberholzer-Gee study. Opposition at 8. Mr. Oberholzer-Gee has not been named as an expert in this case, his opinion has not been subject to cross-examination, and his study is not properly before the Court. Nonetheless, even if it were properly before the Court, the introduction simply says that society has benefitted from P2P networks and that, despite P2P’s weakening of copyright protections, artists continue to produce creative works. Id. This does nothing to establish that widespread P2P use does not harm the market for legitimate recordings. That society may benefit from increased access to copyrighted works does not render a use fair, Harper & Row, 471 U.S. at 569, nor disprove harm to a market. Moreover, the introduction even admits that “file-sharing disrupted some traditional business models in the creative industries, foremost in music.” Opposition at 8. Accordingly, the introduction acknowledges that P2P has had a disruptive effect on the market for legitimate sound recordings. This is not a case of competing business models, as Defendant claims, but a situation in which a legitimate market has been upended by rampant copying and distribution of sound recordings for free. (Declaration and Report of S. Liebowitz at 9, ¶¶ 41-42)
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Finally, Plaintiffs addressed Defendant’s “sampling” argument in their Motion. Indeed, the Seventh Circuit squarely rejected Defendant’s “sampling” argument, i.e., that his downloading should be considered fair use because he “sampled” at least one of the songs at issue and later purchased the song. (J. Tenenbaum Dep. Vol. II at 108:23 to 109:20). This “trybefore-you-buy” argument simply does not hold water because “many people are bound to keep the downloaded files without buying originals.” Gonzalez, 430 F.3d at 890. As part of the court’s analysis, Judge Easterbrook distinguished alleged file sharing sampling from the authorized previews of sound recordings that are available to consumers. Unlike illegal file sharing, authorized previews “share the feature of evanescence: if a listener decides not to buy (or stops paying the rental fee), no copy remains behind.” Id. at 891. Here, Defendant did not delete the copies he downloaded to “sample” because they were all found in his shared folder. Moreover, Defendant’s sampling argument ignores completely the fact that Defendant not only downloaded these sound recordings, he maintained them, burned them to CDRs, and also distributed them to other KaZaA users. Sampling can in no way excuse these behaviors. 6.
Whether Plaintiffs assumed the risk by releasing the sound recordings when they knew that music fans might upload the recordings to the Internet. Defendant appears to be arguing, for the first time, an affirmative defense of assumption
of the risk under the guise of a new fairness factor. First, the deadline to amend Defendant’s Answer to add an affirmative defense has long since passed. Second, the argument is patently absurd. The Copyright Act does not demand that a copyright owner take particular steps to limit access to or reproduction of its works in order to enjoy full protection. As this argument, if accepted, would discourage copyright holder’s from publishing any works that could potentially be infringed, it clearly runs contrary to the purposes of the Copyright Act and should be rejected. 7.
Whether Plaintiffs’ marketing activities contributed to the attractiveness of downloading and uploading the recordings. 10
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Defendant seems to be arguing that if Plaintiffs’ aggressively market a recording, it would be unfair to punish a music fan for infringing it. (Opposition at 9.) If accepted, Defendant’s argument would give a carte blanche to infringe the recordings in which Plaintiffs invest substantial resources to market, effectively destroying all copyright protection for the recordings Plaintiffs value most. Such an absurd proposition does not create a disputed issue of material fact. 8.
Whether the relative unattractiveness of permitted alternatives rendered legitimate recordings unavailable. Defendant argues that because he was forced to choose between illegally downloading a
single sound recording or purchasing an entire CD, the copyrighted sound recordings were effectively unavailable, thus rendering his use fair. Opposition at 9-10. Defendant’s “availability” argument fails on the law and the undisputed facts. While the Supreme Court has never formally adopted this consideration as one that favors an alleged infringer, it has nonetheless suggested that reference to a work’s availability is appropriate. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 553 (“‘If the work is “out of print” and unavailable for purchase through normal channels, the user may have more justification for reproducing it.’”) (quoting Senate Report); see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264, n. 8 (2d Cir. 1986), Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1176 n.14 (5th Cir. 1980) (“[I]f the copyrighted work is out of print and cannot be purchased, a user may be more likely to prevail on a fair use defense.”). However, both the Senate Report cited in Harper & Row and cases discussing “availability” in the fair use context make clear that a work is unavailable when it cannot be obtained through normal channels of commerce, such as book that is out of print, or a movie that is not generally distributed. Duffy v. Penguin Books USA, 4 F. Supp. 2d 268, 275 (S.D.N.Y.
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1998) (“Because Fashion Formula was out-of-print at the time, Nanfeldt was unable to purchase the book. Thus, Duffy lost nothing as a result of Nanfeldt’s decision to photocopy portions of the book.”); Hofheinz v. A&E TV Networks, 146 F. Supp. 2d 442, 447-48 (S.D.N.Y. 2001) (movie was unavailable where film not in general circulation and only leased for showings at sciencefiction film festivals and the like). By contrast, mere inconvenience or unavailability in an infringer’s preferred form do not render an item unavailable. Encyclopedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156, 1177 (W.D.N.Y. 1982). The fact that Defendant may have had to purchase an entire album in order to get his favorite track did not render the track unavailable. “Copyright is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders’ property interests.” UMG Recordings, 92 F. Supp. 2d at 352 (rejecting defendant’s proposed fair use factor that it “provides a useful service to consumers that, in its absence, will be served by ‘pirates.’”). Moreover, Plaintiffs’ choice of media “does not abrogate their rights as copyright holders.” See Encyclopedia Britannica, 542 F. Supp. at 1180 (entering summary judgment on fair use and rejecting defendant’s additional factors). Moreover, Defendant’s factual premise is simply untrue. Every one of the 30 sound recordings at issue was available for digital download by track by 2004, and all but one was available in 2003. See Plaintiffs’ Response to Defendant’s Fair Use Interrogatories, attached as Exhibit B. 9.
Whether it is fair to impose on parents the need to police their children’s activities and live in fear that their children will fail to follow a rule they neither understand nor agree with. Defendant argues that the Copyright Act’s imposition on parents should somehow be a
factor rendering his use fair. (Opposition at 8.) However, that assertion has nothing to do with the facts of this case and does not create a disputed issue of material fact. This action is against 12 #1419607 v1 den
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Defendant Joel Tenenbaum, who was a twenty year old college student when he was caught infringing Plaintiffs’ copyrighted works. The Copyright Act imposes no need on parents to police the online activities of a grown man. 10.
Whether it is fair to impose on schools and universities the necessity to enforce rules that run contrary to their educational mission and constrain the efficiency and experimental reach of their information systems. Defendant similarly argues that the Copyright Act’s imposition on school and universities
should somehow be a factor rendering his use fair. (Opposition at 9.) However, that assertion has nothing to do with the facts of this case and does not create a disputed issue of material fact. Defendant was caught infringing while connected to a Cox Communications Internet account while home from college for the summer. SOF ¶8. While Defendant may also have violated his college’s policies by using its network to infringe copyrighted sound recordings, that is not relevant to the case at bar. Similarly, while Plaintiffs could engage Defendant’s counsel in an interesting debate on whether universities’ educational missions do, or should, include teaching respect for intellectual property, that is not relevant to the issue before the Court. 11.
Whether the alleged disproportion of the legal cause of action and the threat of statutory damages to the magnitude of Defendant’s actions renders his use fair. Finally, Defendant believes that this action is unfair and that the statutory damages
scheme is unconstitutionally disproportionate. Opposition at 10. However, this is not a question of fact, but a question of law to be determined by the Court. The Court has noted that Defendant’s constitutional challenge will not become ripe unless and until the jury awards damages against Defendant. Similarly, Defendant’s attempt to disguise his abuse of process counterclaim as a new fair use factor is improper and should be rejected, as the Court previously ruled. See June 15, 2009 Minute Order (“Even if the Court views file-sharing lawsuits as unwise and the statutory
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penalties a remarkably poor policy judgment, the objectives sought by this suit are well within those contemplated by Congress and the Copyright Act, 17 U.S.C. s. 101 et seq.). As Defendant has not established any disputed issues of material fact, summary judgment should be entered in Plaintiffs’ favor CONCLUSION As there are no disputed issues of fact to be determined by the finder of fact, summary judgment should be entered on Defendant’s fair use defense. For purposes of this case, and this case alone, to the extent the Court finds an issue of triable fact and does not subsequently issue a directed verdict, Plaintiffs stipulate that the issue of fair use can be considered by the jury. Respectfully submitted this 20th day of July, 2009.
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SONY BMG MUSIC ENTERTAINMENT; WARNER BROS. RECORDS INC.; ATLANTIC RECORDING CORPORATION; ARISTA RECORDS LLC; and UMG RECORDINGS, INC. By their attorneys, By:
s/ Eve G. Burton Timothy M. Reynolds (pro hac vice) Eve G. Burton (pro hac vice) Laurie J. Rust (pro hac vice) HOLME ROBERTS & OWEN LLP 1700 Lincoln, Suite 4100 Denver, Colorado 80203 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 Email: [email protected] [email protected] [email protected] Matthew J. Oppenheim (pro hac vice) THE OPPENHEIM GROUP 7304 River Falls Drive Potomac, MD 20854 Telephone (301) 299-4986 Facsimile: (866) 766-1678 Email: [email protected] Daniel J. Cloherty DWYER & COLLORA, LLP 600 Atlantic Avenue - 12th Floor Boston, MA 02210-2211 Telephone: (617) 371-1000 Facsimile: (617) 371-1037 Email: [email protected] ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on July 20, 2009. s/ Eve G. Burton
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS VOLUME 1 PAGES 1-209 - - - - - - - - - - - - - - - - - - - - - - - -* CAPITOL RECORDS, INC., ET AL, Plaintiffs VS. Case No. 03CV11661-NG NOOR ALAUJAN, LEAD DOCKET NO. Defendant - - - - - -- - - - - - - - - - - - - - - - - - -* SONY BMG MUSIC ENTERTAINMENT, et al, Plaintiffs VS. Case No. 07CV11446-NG JOEL TENENBAUM, ORIGINAL DOCKET NO. Defendant - - - - - - - - - - - - - - - - - - - - - - - --*
CONTINUED DEPOSITION OF JOEL TENENBAUM, taken on behalf of the Plaintiffs, taken pursuant to Notice under the Massachusetts Rules of Civil Procedure, before Kim M. Romaine, Notary Public and Shorthand Reporter in and for the Commonwealth of Massachusetts at the Office of Dwyer & Collora, 600 Atlantic Avenue, Boston, Massachusetts, on Wednesday, July 8, 2009 commencing at 9:30 a.m.
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APPEARANCES: ON BEHALF OF PLAINTIFFS: EVE GOLDSTEIN BURTON, ESQ. Holme Roberts & Owen, LLP 4 1700 Lincoln Street Denver, Colorado 80203-4541 5 303/866-0551 6 ON BEHALF OF PLAINTIFFS: 7 MATTHEW J. OPPENHEIM, ESQ. The Oppenheim Group 8 7304 River Falls Drive Potomac, Maryland 20854 9 301/299-4986 10 ON BEHALF OF JOEL TENENBAUM: 11 CHARLES NESSON, ESQ. 1575 Massachusetts Avenue 12 Cambridge, Massachusetts 02138 617/495-4609 13 ON BEHALF OF JOEL TENENBAUM: 14 MATTHEW FEINBERG, ESQ. Feinberg Kamholtz 15 125 Summer Street Boston, Massachusetts 02110 16 617/526-0700 17 ALSO PRESENT: Isaac Meister 18 Victoria L. Steinberg, Esq. 19 20 21 22 23 24
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INDEX DEPOSITION OF: JOEL TENENBAUM EXAMINATION BY MS. BURTON ...........PAGE 4 ...........PAGE 205 EXAMINATION BY MR. FEINBERG .........PAGE 196
No. 1 2 3 4 5 6
EXHIBITS Description Page Packet 71 Letter 4/30/09 84 Schedule 1 107 Exhibit A 107 Packet 179 Packet 196
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PROCEEDINGS MR. STEINBERG: No stipulations? MS. BURTON: No stipulations. JOEL TENENBAUM, the witness, having been duly cautioned and sworn, testified upon his oath as follows: -----------EXAMINATION BY MS. BURTON: Q. Good morning, Joel. A. Good morning. Q. As you know, I'm Eve Burton. I represent the plaintiffs in this case. I deposed you last time. Maybe nine months ago or so. A. You did. Q. Is there anything in that deposition that you no longer believe to be accurate? MR. FEINBERG: Objection. Motion to strike. MS. BURTON: What? MR. FEINBERG: I said objection. Motion to strike. There are no stipulations on the record so I will objecting whenever I hear something that I do not like. MS. BURTON: Maybe I didn't Page 5
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understand. In a deposition, usually form and foundation need to be made. The rest are preserved. Is that the stipulation you were referencing? MR. FEINBERG: Yes. There is a full range of stipulations that we normally do. I don't know whether you did it before with Joel's first deposition. We usually reserve all motions to strike and all motions except as to form until the time of trial. MS. BURTON: That's fine. MR. FEINBERG: We also waive the filing and the notarization of it, but we usually have a 30-day period for Joel to read and sign the deposition and make corrections. MS. BURTON: Obviously that is not going to work here. MR. FEINBERG: We will need the deposition well in advance of the trial in order to do that. MS. BURTON: Okay. As a preliminary matter, let me back up. I do want to say that I do understand, Mr. Nesson, you are recording this deposition on your audio recorder. We do object 2 (Pages 2 to 5)
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A. No longer had utility to me. Q. Is that because of this lawsuit? A. No. Q. Why didn't that have utility to you? A. It didn't get me music. Q. Why? A. I don't know. Q. It stopped functioning? A. Yes. Q. Okay. Approximately how many songs did you download using Morpheus? A. No clue. Probably order of magnitude ten. Q. Did you ever use stream cast on the Gateway? A. No. Q. Did you ever use Grokster? A. No. Q. So do you believe you've told me every peer to peer you had on this Gateway computer? A. I do believe I have. Q. Do you believe you had all five of these peer to peers on the computer at the same time? A. I have no idea. I used whatever program seemed the most useful to me at the time. Q. What do you mean by the most useful?
A. The maximum amount of music sharing with the minimal amount of wasted effort. Q. When you were -- when LimeWire was on the Gateway but you were not actively using it, did you take steps to -- what steps, if any, did you take to shut the program down? MR. FEINBERG: Objection. You are asking him when he uninstalled it again? MS. BURTON: No. If he was not actually using it on his computer, did he click on the X? Did he file close? Did he leave it open? BY MS. BURTON: Q. What did you do with the program when it was on your computer but you were not actively using it? A. What did I do with a program when I wasn't using it? Q. So you are sitting down at your computer and you are looking for music on LimeWire and then you get up and you are done. What did you do to LimeWire? Did you shut it down? Did you leave it open? If you shut it down, how? A. I imagine it depended.
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Q. What is your standard practice when you are finished using a program? A. I close the program. Q. How do you do that? A. You select close from the menu or you click the X or you right click on the task bar and then left click on close. Q. Did you ever -A. If it's a recalcitrant program, you will control alt delete it and then you close it that way. Q. That is exactly what I'm trying to get at. Do you know how you would close LimeWire, if at all? A. Probably a variety of ways. Q. Was it your practice to leave LimeWire running while you were not using it? A. I think so. Q. Do you know what version of LimeWire you were using? A. No clue. Q. Did you ever upgrade LimeWire? A. I don't think so. Q. Was it your practice when you purchased a CD to rip it onto your computer? Page 61
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A. You mean to copy it to the computer's hard drive? Q. Yes. A. Absolutely. Q. So other than peer to peers and purchased CDs that you uploaded and music you purchased from iTunes, is there any other source of music on the Gateway? A. Yes. MR. FEINBERG: Can you say that again? Other than what? MS. BURTON: Other than music he purchased from iTunes, music he got from peer to peers and CD he purchased and unloaded how else did music get on his computer. A. Through face-to-face interactions with friends. Q. I don't understand that. A. The music can get onto the computer by either using a program, whether it be a peer to peer program or a network neighborhood type thing. I can also get it by buying the physical product but buying it on iTunes. Also a friend could share it with me through either a CD or a USB or 16 (Pages 58 to 61)
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1 Q. Okay. That would include -- let me just be 2 clear. Do you contend that all of the movies you 3 downloaded, copyrighted movies you downloaded 4 through peer to peer networks, that downloading 5 was fair use? 6 MR. FEINBERG: Objection. I am going 7 to instruct him not to answer that. That is way 8 beyond the scope of this. There is nothing in 9 the complaint and nothing in any of the pleadings 10 that has to do with movies. 11 MR. OPPENHEIM: Answer the question. 12 MR. FEINBERG: I've already told him 13 not to answer the question. 14 MR. OPPENHEIM: It's not a privileged 15 objection. You can't instruct him. 16 MR. FEINBERG: Really? Take it to 17 the judge. 18 MR. OPPENHEIM: Can you mark this 19 please. This is unbelievable. 20 BY MS. BURTON: 21 Q. Do you contend that all of the TV episodes 22 that you downloaded using the peer to peer 23 network was fair use? 24 MR. FEINBERG: Same instruction.
MS. BURTON: You are instructing him not to answer? MR. FEINBERG: Yes. (Exhibit Nos. 3 and 4 marked for identification). BY MS. BURTON: Q. Do you contend that your downloading of the five recordings listed on Exhibit 4 was fair use? A. Yes. Q. Do you contend that your distribution of the five sound recordings listed on deposition Exhibit 4 was fair use? A. Yes. Q. Do you have any basis to -- is there any -does the basis of your fair use defense differ as to any of these songs on deposition Exhibit 4? A. You mean differ by a song? Q. In any respect. MR. FEINBERG: She is asking you whether or not you have a different nuance of the fair use defense as to each individual song or is it all the same defense. A. Again, it's all a matter of the four factors, plus other factors that we think are appropriate
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for consideration. Q. And do they vary based on which of the recordings we are talking about on deposition Exhibit 4? A. I think so. Q. Okay. What is the basis of your fair use defense as it pertains to Incubus, recording title New Skin, album title Science? A. I will simplify the whole process here. I think the first four are the same. Nirvana Come as You Are might fall under fair use in a different way. Q. How? A. I own the album. Q. So am I understanding you correctly that all five songs listed on deposition Exhibit 4, the basis of your fair use defense is the same except as to Nirvana; there is this additional aspect that you own the album? MR. FEINBERG: Objection to the form. You can try to answer that if you can. A. Yes. Q. Okay. And how does the fact that you own the album pertain to your fair use defense? Page 109
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A. As a question of sampling and purchase of commerciality, of money spent, I think it's relevant that I purchased the album of at least one of these songs. Q. And so you listed the four things: Sampling, purchase, commerciality and money spent. How does the fact that you own the album pertain to your -- do you contend that sampling is a factor in fair use? A. I'm not that well versed in fair use. I don't know the specifics or the limit or the full extent. I don't have all of it in my head. Q. I'm just trying to understand what you are telling me. You say that the fact that you own the album pertains to your fair use defense. Actually, I will break it down. Does the fact that you own the album pertain to your fair use defense as applied to downloading of the recording? A. Yes. Q. Does the fact that you own the album pertain to the fair use of your distribution of the recording? A. I think so. 28 (Pages 106 to 109)
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BY MS. BURTON: Q. When did you first use iTunes? A. I don't know. Q. Can you approximate? A. I would guess in the second half of college. Q. 2004, 2005, is that right? A. I think it would be more likely 2005 through 2006. Q. Before you downloaded a sound recording through a peer to peer network, did you go and look if you could get it anywhere on a legal alternative? A. Sorry? Q. Before you downloaded a sound recording on a peer to peer network did you first go and check if it was available through a legitimate authorized service? A. The majority of what was downloaded on peer to peer networks was available in a record store or amazon if amazon was around then. Q. So you know the records were available. Could you download individual tracks online legally? A. It's possible I could have. I don't know if I was aware of it at the time.
Q. What is in fact my question. Before you downloaded these -- we will start with Exhibit 4. These five sound recordings on Exhibit 4 did you first go and check whether there were any digital authorized alternatives for which -- on which you could download these tracks? A. You mean individually? Q. Yes. A. I don't remember if I checked, if I knew. Q. Do you believe that you checked if there were legal alternatives available before downloading the five recordings on Exhibit 4? A. It very much depends on how much I knew about iTunes at the time. I don't recall when I learned about iTunes, when I downloaded and signed up with iTunes. Q. Do you know whether the five recordings listed on Exhibit 4 were available on iTunes in August of 2004? A. I have no clue. Q. Would that impact your fair use defense? A. If I was aware if these were available on iTunes? Q. If they were available on iTunes.
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A. It's possible the actual availability of these songs plays a factor as much as my awareness of that availability. Q. The question is did you believe. And your answer is it's possible? A. Those are not things I've considered in great detail. Q. I'm asking you to consider it now. Do you believe that the availability of these songs on iTunes, the songs listed on Exhibit 4 has an impact on your fair use defense? MR. FEINBERG: I will stop him. It's the same question. I think it's now five or six times. You have asked the same question. I will instruct him not to answer it. You can take it up with the judge. BY MS. BURTON: Q. What are the facts that support your fair use defense? A. The context of my downloading and distributing music, the laws as are written on books, anything else that goes into a legal proceeding that is a relevant fact. Q. I'm asking you what those facts are? Page 125
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A. Well, those are what I can recall specifically. Q. So the context, what do you mean by that? A. When and where and how much and the commerciality, whether I had purchased music through pay sources. Q. What do you mean by when? A. Any number of other factors. My state of mind at the time of downloading. Q. So your -A. My awareness. MR. FEINBERG: I would like to take a bathroom break at some point. THE WITNESS: I have to too. BY MS. BURTON: Q. Finish your answer and then we will take a break. A. The state of the music industry, its change, my music buying and music downloading habits, my discussion of the music with friends and family, the sales and revenues of those songs. Possibly other things I can't recall right now. Q. Is that a complete list to the best of your knowledge? 32 (Pages 122 to 125)
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