Plaintiffs Msj Exhibits Pt. 3
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- Words: 4,500
- Pages: 80
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home. Q. When did you get it? By home you mean your parents' home? A. Yes, my parents' home. I got it between when I was in sixth and ninth grade. Q. Was it ever hooked to the Internet? A. I didn't get it. My parents got it. Q. Was it ever connected to the Internet? A. At one point. Q. When was the last time it was connected to the Internet? A. I don't know. I can approximate several years ago. Q. Since 2004? A. I don't think so. Q. Since you were out of high school? A. I think so. Q. Did you ever use Kazaa on that computer? A. I don't believe so. Q. You are not sure? A. I'm not sure. Q. It's possible? A. Yes. Q. Did you ever use any other peer to peer
program on the Gateway desktop on the third floor of your home? A. Yes. Q. You did? A. Yes. Q. What did you use? A. Napster. Q. So did you use Napster before you used Kazaa? A. Kazaa didn't exist when Napster was out. Q. Okay. Why did you switch from Napster to Kazaa? A. Napster would no longer function. Q. Why not? A. Well, I mean that's a why question. Q. It is in fact. A. I don't know why it stopped working. I know there were forces beyond my control which required Napster to stop working. Q. So was it when it no longer worked on your computer or that Napster generally no longer existed or worked? A. I'm pretty sure that it didn't work on anyone's computer. Q. Napster was removed as a program, is that what
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you are saying? I'm trying to understand what you are telling me. A. Napster didn't work anymore. Q. Is it your understanding that Napster was shut down? A. Yes. Q. Okay. Do you know why it was shut down? A. I don't know why. I'm not an expert in legal matters. Q. What is your understanding of what -A. My understanding is some sort of lawsuit against Napster or the people who made Napster, whatever, regarding copyright infringement. Q. My friend over here. So the Napster that you were using on the Gateway desktop was shut down? A. The Napster everyone was using was shut down. Q. I'm trying to distinguish now there is a new legal Napster. I'm just trying to distinguish what you are talking about. A. It was not the new one. It was the old one. The new one, it's the same name but -Q. Not the same concept? A. No. They thought that if they put the name on it people would get nostalgic. I don't know. Page 109
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Q. So you were using Napster at the time it was shut down? I mean, not maybe the exact moment, but it was on your Gateway at the time that Napster was shut down? A. I don't know. Q. Were you aware that it was shut down approximately when it happened? A. I read about it in the newspapers, so I was generally aware of the approximate timetable. Q. You were aware that it had something to do with a lawsuit and the fact that the music on Napster? A. I am aware that it has to do with your friend, and I'm sure he has more details than me that it was generally a lawsuit and infringement issue. Q. That was approximately at the time it actually was shut down? A. You are asking if I knew it was a lawsuit and infringement issue at the time that it was shut down? Q. Yes. A. Yes. I read about that aspect too. That was all in the papers together. Q. So Napster stopped working as well on your 28 (Pages 106 to 109)
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sharing. I think by my junior year it was completely useless to post music to be shared because nobody else could see it or download or access or whatever. Q. Why did Gaucher do this, if you know? MR. FEINBERG: Objection. MS. BURTON: What is your objection? MR. FEINBERG: How does he know what Gaucher did? MS. BURTON: I'm asking if he knows why they may have published something. MR. FEINBERG: I'm objecting to the question. I didn't tell him not to answer the question. MS. BURTON: I understand. I was trying to understand it. I appreciate it. BY MS. BURTON: Q. Can you explain, if you know, why Gaucher limited file sharing? A. I did not know at the time, however, I have since learned that -- last night learned that it was actually a student initiative. Q. Do you know the reason for the student initiative?
A. I can conjecture but I don't know. Q. So when you posted music on this network neighborhood it was available for other users of the network to download the music? A. Yes. Q. And you may have answered this already but do you remember when the music was taken off of the network neighborhood? A. I think by my junior year there was no utility in sharing music that way because your friends could not see the music being shared. They could not access it. Q. Did you take it down at that point? A. I must have taken it down at the point where it didn't do anything. Q. What year was that? I know you said your junior year. Was that '05, '06? A. My junior year spanned '04 to '05. THE WITNESS: I'm going to need a bathroom break. MS. BURTON: That's fine. (Break taken). BY MS. BURTON: Q. If you can, can you tell me the programs, the
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peer to peer programs in order that you installed them? So KaZaA. MR. FEINBERG: Chronologically? MS. BURTON: Yes. A. No clue. The answer is no, I can't. Other than I had Napster before I had all the other stuff. I don't think Napster even made it on the Gateway computer. Q. I'm trying to get a better sense of when you used LimeWire on the Gateway. Could you just to the best of your recollection -- I know we have gone through this a little bit but you said you installed it post August. No. I'm sorry. When did you say you installed LimeWire? MR. FEINBERG: We have been through this. I am not going to have him go through it again. It's pretty clear that he said he uninstalled it sometime after August '06 and probably before '08. If you want to ask him when he first installed it, you can ask him one more time. BY MS. BURTON: Q. When did you first install LimeWire? A. I have no useful memory for it so I can only Page 37
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deduce from everything else that I know that it must have been late '02 to early '03 because I must have had the computer before I downloaded it. That is all I really remember. Q. And you uninstalled it you said because it was causing you problems, correct? A. Actually, I think I said I uninstalled it because you had no use for it and it probably caused problems with the computer's performance and stability and so forth. Q. Why did you have no use for it? A. I didn't use it to do what I did with it. Q. Which was? A. I no longer used it to download music or to share music. Q. Why? A. ITunes and purchasing physical albums was a better alternative at that point. Q. Why? A. Much simpler. Much higher probability of getting what you want at high quality right away. Then there was this certain lawsuit from this Sony BMG and folks. Q. This lawsuit? 10 (Pages 34 to 37)
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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, ) ) Defendants. ) )
Civ. Act. No. 03-CV-11661-NG (LEAD DOCKET NUMBER)
Civ. Act. No 1:07-cv-11446-NG (ORIGINAL DOCKET NUMBER)
PLAINTIFFS’ RESPONSES TO DEFENDANT’S SECOND SET OF INTERROGATORIES Pursuant to Federal Rules of Civil Procedure 33, Plaintiffs Sony BMG Music Entertainment; Warner Bros. Records Inc.; Arista Records LLC; and UMG Recordings, Inc., respond as follows to Defendant Joel Tenenbaum: GENERAL OBJECTIONS Plaintiffs makes the following General Objections to Defendant's discovery requests: 1.
Plaintiffs object to these interrogatories as a whole to the extent that they request
information that is protected from disclosure by the attorney-client privilege and/or the attorney work-product doctrine.
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Plaintiffs object to these interrogatories as a whole on the ground that they are
overly broad with regard to subject matter and time period for which information is requested. The discovery requests are also vague, ambiguous, and unduly burdensome. They seek the production of information and documents that are neither relevant nor reasonably calculated to lead to discovery of admissible evidence. 3.
Plaintiffs reserve the right to modify, amend, or supplement these answers and
objections and specifically reserve their right to move for appropriate protective orders. SPECIFIC OBJECTIONS AND ANSWERS TO INTERROGATORIES
Response to Interrogatory No. 14: Plaintiffs object to this Interrogatory on the ground that it is vague, ambiguous, and incomprehensible. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the grounds that it assumes that Plaintiffs’ claim is based on only copying, and not distribution of the recordings at issue. Plaintiffs further object to this Interrogatory on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to this Interrogatory on the ground that it is unduly burdensome.
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Plaintiffs also object to this Interrogatory on the ground that it turns the fair use inquiry on its head by assuming fair use. Impact on the market is a factor to be considered in determining fair use. Plaintiffs further object to this Interrogatory on the ground that Defendant has never explained the basis for his fair use defense and so Plaintiffs cannot determine the effect of some unknown fair use defense being accepted. Finally, Plaintiffs object to this Interrogatory as an improper hypothetical requesting a speculative answer. Notwithstanding and without waiving the foregoing objections, Plaintiffs believe that all markets for legitimate copies of Plaintiffs’ works have been negatively impacted by illegal peerto-peer filesharing such as that engaged in by Defendant. It is illogical to suggest that free downloaded music does not impact the commercial market for the same product, which would include, but is not limited to, the following markets: physical CD sales, sales of other physical products, sale of authorized digital downloads, online subscription services, digital streaming services, ringtone sales, mobile music, music videos, music kiosks, webcasting, satellite radio, digital audio broadcasting, podcasting, social networks, and audio and/or video-streaming sites. In particular, illegal online file sharing has caused reduced sales of legitimate copies of Plaintiffs’ works. As Defendant’s own expert, John Palfrey explained, in his recent deposition: Q. And you agree that the illegal file-sharing can harm someone, namely the copyrightholder? A. I do. Q. And that the harm occurs if the artist or company that holds the rights is deprived of a sale of the recorded work that otherwise would have occurred? A. I do. Q. . . . . You agree that the affect of P-to-P use has been a decline in the music industry to the tune of billions of dollars? A. I suspect that's accurate Palfrey, July 1, 2009 Deposition, page 65.
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Illegal file sharing has also harmed Plaintiffs’ ability to develop a market for the legal distribution of their works on the Internet. In BMG Music v. Gonzalez, 430 F.3d 888, 890 (7th Cir. 2005), a KaZaA peer-to-peer file-sharing case, Judge Easterbrook explained, “Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals. . . .” Similarly, in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir. 2001), the Court held that Napster users harm the market it at least two ways: “it reduces audio CD sales among college students and it raises barriers to plaintiffs’ entry into the market for the digital downloading of music.” Indeed, the Department of Justice warns that online media distribution systems are “one of the greatest emerging threats to intellectual property ownership,” estimated that “millions of users access P2P networks,” and determined that “the vast majority” of those users “illegally distribute copyrighted materials through the networks.” Report of the Department of Justice’s Task Force on Intellectual Property, available at http://www.cybercrime.gov/IPTaskForceReport.pdf at 39 (October 2004). As Professor Fisher explained in a recent email to Defendant’s counsel, “[I]t’s not credible to argue that widespread P2P file sharing has not and will not give rise to ‘some meaningful likelihood of future harm’ to the revenues of the holders of copyrights in sound recordings and musical works.” (March 29, 2009 email from William Fisher to Charles Nesson)
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Response to Interrogatory No. 15: Plaintiffs object to this Interrogatory on the ground that it is vague and ambiguous. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the ground that it is overly broad and unduly burdensome. Additionally, Plaintiffs object to this Interrogatory as not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object that this Interrogatory has no bearing on whether Defendant’s copyright infringement constituted fair use. Since the Court has expressly limited discovery to fair use, it is improper. While some Plaintiffs have engaged in many different technical measures over the years, those measures are, in large measure, confidential and proprietary. Moreover, Plaintiffs are not required or obliged in any manner to employ technical measures in order to maintain or assert their copyrights.
Response to Interrogatory No. 16: Plaintiffs object to this Interrogatory on the ground that it is vague, ambiguous, and incomprehensible. Plaintiffs object to this Interrogatory to the extent it relies on the undefined 5 #1414876 v3 den
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term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory to the extent it relies on the undefined term “seed.” Plaintiffs have no idea what Defendant is referring to. Plaintiffs further object to this Interrogatory on the ground that it is overly broad and unduly burdensome. Additionally, Plaintiffs object to this Interrogatory as not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object that this Interrogatory has no bearing on whether Defendant’s copyright infringement constituted fair use. Since the Court has expressly limited discovery to fair use, it is improper. While some Plaintiffs have engaged in many different technical measures over the years, those measures are, in large measure, confidential and proprietary. Moreover, Plaintiffs are not required or obliged in any manner to employ technical measures in order to maintain or assert their copyrights.
Response to Interrogatory No. 17: Plaintiffs object to this Interrogatory on the ground that it is vague and ambiguous. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.”
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Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the ground that it is overly broad and unduly burdensome. Additionally, Plaintiffs object to this Interrogatory as not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object that this Interrogatory has no bearing on whether Defendant’s copyright infringement constituted fair use. Notwithstanding and without waiving the foregoing objections, sound recordings were widely available for legal digital download when Defendant was caught infringing on August 8, 2004. By that time, the following services, among others, were available: Amazon, Yahoo!, Sony Connect, Napster 2.0, MusicMatch, Music Now, and iTunes and were offering authorized digital downloads for purchase in the United States. Also by that time, there were companies offering online music subscription services in the U.S. These included, among others, Rhapsody, Launchcast and MusicNet . The iTunes Store came online for legal online music purchases in April 2003 with about 200,000 sound recordings available for download. See http://www.nytimes.com/2004/04/29/technology/29apple.html. At the time the iTunes Store launched in April 2003, it had already signed deals with the five major record labels, including all of the Plaintiffs in this case. As such, it is likely that many or most of the sound recordings at issue in this case were available online, through the iTunes Store, in April 2003.
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By 2004, over one million sound recordings were available for legal digital download and there were more than 230 online services available for consumers to purchase music legally online. See IFPI:05 Digital Music Report, available at http://www.ifpi.org/content/library/digitalmusic-report-2005.pdf. Prices vary based on service, rights, market, and currency. The most
popular site for legal digital downloads in the United States is iTunes which currently charges between $0.69 and $1.29 for most individual tracks of copyrighted sound recordings. Of course, the sound recordings at issue were also made available, without Plaintiffs’ consent, through online filesharing networks such as KaZaA. There is no price for such unauthorized downloads.
Response to Interrogatory No. 18: Plaintiffs object to this Interrogatory on the ground that it is vague, ambiguous, and incomprehensible. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the ground that it is unrelated to fair use. Plaintiffs also object to this Interrogatory because it is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding and without waiving the foregoing objections, the copyrighted works are the sound recordings listed in both Plaintiffs’ Second
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Amended Exhibit A and Second Amended Schedule 1. The column entitled “SR” is the certificate of copyright registration number, as reflected on the certified copies of copyright registration reproduced to Defendant on June 19, 2009. The copyrights are the copyrights in sound recordings and includes all rights conveyed under the Copyright Act.
Response to Interrogatory No. 19: See objections and response to Interrogatory No. 18.
Dated: July3, 2009
As to objections: 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] Daniel J. Cloherty (BBO #565772) DWYER & COLLORA, LLP 600 Atlantic Avenue - 12th Floor Boston, MA 02210-2211 Telephone: (617) 371-1000 Facsimile: (617) 371-1037 [email protected] ATTORNEYS FOR Plaintiffs
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CERTIFICATE OF SERVICE The undersigned hereby certifies that on July3,2009, the foregoing PLAINTIFFS’ RESPONSES TO DEFENDANT’S SECOND SET OF INTERROGATORIES was served by United States Mail on the following: Charles Nesson 1575 Massachusetts Avenue Cambridge, MA 02138 [email protected] Attorney for Defendant
Eve Burton Eve G. Burton (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]
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home. Q. When did you get it? By home you mean your parents' home? A. Yes, my parents' home. I got it between when I was in sixth and ninth grade. Q. Was it ever hooked to the Internet? A. I didn't get it. My parents got it. Q. Was it ever connected to the Internet? A. At one point. Q. When was the last time it was connected to the Internet? A. I don't know. I can approximate several years ago. Q. Since 2004? A. I don't think so. Q. Since you were out of high school? A. I think so. Q. Did you ever use Kazaa on that computer? A. I don't believe so. Q. You are not sure? A. I'm not sure. Q. It's possible? A. Yes. Q. Did you ever use any other peer to peer
program on the Gateway desktop on the third floor of your home? A. Yes. Q. You did? A. Yes. Q. What did you use? A. Napster. Q. So did you use Napster before you used Kazaa? A. Kazaa didn't exist when Napster was out. Q. Okay. Why did you switch from Napster to Kazaa? A. Napster would no longer function. Q. Why not? A. Well, I mean that's a why question. Q. It is in fact. A. I don't know why it stopped working. I know there were forces beyond my control which required Napster to stop working. Q. So was it when it no longer worked on your computer or that Napster generally no longer existed or worked? A. I'm pretty sure that it didn't work on anyone's computer. Q. Napster was removed as a program, is that what
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you are saying? I'm trying to understand what you are telling me. A. Napster didn't work anymore. Q. Is it your understanding that Napster was shut down? A. Yes. Q. Okay. Do you know why it was shut down? A. I don't know why. I'm not an expert in legal matters. Q. What is your understanding of what -A. My understanding is some sort of lawsuit against Napster or the people who made Napster, whatever, regarding copyright infringement. Q. My friend over here. So the Napster that you were using on the Gateway desktop was shut down? A. The Napster everyone was using was shut down. Q. I'm trying to distinguish now there is a new legal Napster. I'm just trying to distinguish what you are talking about. A. It was not the new one. It was the old one. The new one, it's the same name but -Q. Not the same concept? A. No. They thought that if they put the name on it people would get nostalgic. I don't know. Page 109
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Q. So you were using Napster at the time it was shut down? I mean, not maybe the exact moment, but it was on your Gateway at the time that Napster was shut down? A. I don't know. Q. Were you aware that it was shut down approximately when it happened? A. I read about it in the newspapers, so I was generally aware of the approximate timetable. Q. You were aware that it had something to do with a lawsuit and the fact that the music on Napster? A. I am aware that it has to do with your friend, and I'm sure he has more details than me that it was generally a lawsuit and infringement issue. Q. That was approximately at the time it actually was shut down? A. You are asking if I knew it was a lawsuit and infringement issue at the time that it was shut down? Q. Yes. A. Yes. I read about that aspect too. That was all in the papers together. Q. So Napster stopped working as well on your 28 (Pages 106 to 109)
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sharing. I think by my junior year it was completely useless to post music to be shared because nobody else could see it or download or access or whatever. Q. Why did Gaucher do this, if you know? MR. FEINBERG: Objection. MS. BURTON: What is your objection? MR. FEINBERG: How does he know what Gaucher did? MS. BURTON: I'm asking if he knows why they may have published something. MR. FEINBERG: I'm objecting to the question. I didn't tell him not to answer the question. MS. BURTON: I understand. I was trying to understand it. I appreciate it. BY MS. BURTON: Q. Can you explain, if you know, why Gaucher limited file sharing? A. I did not know at the time, however, I have since learned that -- last night learned that it was actually a student initiative. Q. Do you know the reason for the student initiative?
A. I can conjecture but I don't know. Q. So when you posted music on this network neighborhood it was available for other users of the network to download the music? A. Yes. Q. And you may have answered this already but do you remember when the music was taken off of the network neighborhood? A. I think by my junior year there was no utility in sharing music that way because your friends could not see the music being shared. They could not access it. Q. Did you take it down at that point? A. I must have taken it down at the point where it didn't do anything. Q. What year was that? I know you said your junior year. Was that '05, '06? A. My junior year spanned '04 to '05. THE WITNESS: I'm going to need a bathroom break. MS. BURTON: That's fine. (Break taken). BY MS. BURTON: Q. If you can, can you tell me the programs, the
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peer to peer programs in order that you installed them? So KaZaA. MR. FEINBERG: Chronologically? MS. BURTON: Yes. A. No clue. The answer is no, I can't. Other than I had Napster before I had all the other stuff. I don't think Napster even made it on the Gateway computer. Q. I'm trying to get a better sense of when you used LimeWire on the Gateway. Could you just to the best of your recollection -- I know we have gone through this a little bit but you said you installed it post August. No. I'm sorry. When did you say you installed LimeWire? MR. FEINBERG: We have been through this. I am not going to have him go through it again. It's pretty clear that he said he uninstalled it sometime after August '06 and probably before '08. If you want to ask him when he first installed it, you can ask him one more time. BY MS. BURTON: Q. When did you first install LimeWire? A. I have no useful memory for it so I can only Page 37
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deduce from everything else that I know that it must have been late '02 to early '03 because I must have had the computer before I downloaded it. That is all I really remember. Q. And you uninstalled it you said because it was causing you problems, correct? A. Actually, I think I said I uninstalled it because you had no use for it and it probably caused problems with the computer's performance and stability and so forth. Q. Why did you have no use for it? A. I didn't use it to do what I did with it. Q. Which was? A. I no longer used it to download music or to share music. Q. Why? A. ITunes and purchasing physical albums was a better alternative at that point. Q. Why? A. Much simpler. Much higher probability of getting what you want at high quality right away. Then there was this certain lawsuit from this Sony BMG and folks. Q. This lawsuit? 10 (Pages 34 to 37)
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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, ) ) Defendants. ) )
Civ. Act. No. 03-CV-11661-NG (LEAD DOCKET NUMBER)
Civ. Act. No 1:07-cv-11446-NG (ORIGINAL DOCKET NUMBER)
PLAINTIFFS’ RESPONSES TO DEFENDANT’S SECOND SET OF INTERROGATORIES Pursuant to Federal Rules of Civil Procedure 33, Plaintiffs Sony BMG Music Entertainment; Warner Bros. Records Inc.; Arista Records LLC; and UMG Recordings, Inc., respond as follows to Defendant Joel Tenenbaum: GENERAL OBJECTIONS Plaintiffs makes the following General Objections to Defendant's discovery requests: 1.
Plaintiffs object to these interrogatories as a whole to the extent that they request
information that is protected from disclosure by the attorney-client privilege and/or the attorney work-product doctrine.
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Plaintiffs object to these interrogatories as a whole on the ground that they are
overly broad with regard to subject matter and time period for which information is requested. The discovery requests are also vague, ambiguous, and unduly burdensome. They seek the production of information and documents that are neither relevant nor reasonably calculated to lead to discovery of admissible evidence. 3.
Plaintiffs reserve the right to modify, amend, or supplement these answers and
objections and specifically reserve their right to move for appropriate protective orders. SPECIFIC OBJECTIONS AND ANSWERS TO INTERROGATORIES
Response to Interrogatory No. 14: Plaintiffs object to this Interrogatory on the ground that it is vague, ambiguous, and incomprehensible. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the grounds that it assumes that Plaintiffs’ claim is based on only copying, and not distribution of the recordings at issue. Plaintiffs further object to this Interrogatory on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to this Interrogatory on the ground that it is unduly burdensome.
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Plaintiffs also object to this Interrogatory on the ground that it turns the fair use inquiry on its head by assuming fair use. Impact on the market is a factor to be considered in determining fair use. Plaintiffs further object to this Interrogatory on the ground that Defendant has never explained the basis for his fair use defense and so Plaintiffs cannot determine the effect of some unknown fair use defense being accepted. Finally, Plaintiffs object to this Interrogatory as an improper hypothetical requesting a speculative answer. Notwithstanding and without waiving the foregoing objections, Plaintiffs believe that all markets for legitimate copies of Plaintiffs’ works have been negatively impacted by illegal peerto-peer filesharing such as that engaged in by Defendant. It is illogical to suggest that free downloaded music does not impact the commercial market for the same product, which would include, but is not limited to, the following markets: physical CD sales, sales of other physical products, sale of authorized digital downloads, online subscription services, digital streaming services, ringtone sales, mobile music, music videos, music kiosks, webcasting, satellite radio, digital audio broadcasting, podcasting, social networks, and audio and/or video-streaming sites. In particular, illegal online file sharing has caused reduced sales of legitimate copies of Plaintiffs’ works. As Defendant’s own expert, John Palfrey explained, in his recent deposition: Q. And you agree that the illegal file-sharing can harm someone, namely the copyrightholder? A. I do. Q. And that the harm occurs if the artist or company that holds the rights is deprived of a sale of the recorded work that otherwise would have occurred? A. I do. Q. . . . . You agree that the affect of P-to-P use has been a decline in the music industry to the tune of billions of dollars? A. I suspect that's accurate Palfrey, July 1, 2009 Deposition, page 65.
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Illegal file sharing has also harmed Plaintiffs’ ability to develop a market for the legal distribution of their works on the Internet. In BMG Music v. Gonzalez, 430 F.3d 888, 890 (7th Cir. 2005), a KaZaA peer-to-peer file-sharing case, Judge Easterbrook explained, “Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals. . . .” Similarly, in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir. 2001), the Court held that Napster users harm the market it at least two ways: “it reduces audio CD sales among college students and it raises barriers to plaintiffs’ entry into the market for the digital downloading of music.” Indeed, the Department of Justice warns that online media distribution systems are “one of the greatest emerging threats to intellectual property ownership,” estimated that “millions of users access P2P networks,” and determined that “the vast majority” of those users “illegally distribute copyrighted materials through the networks.” Report of the Department of Justice’s Task Force on Intellectual Property, available at http://www.cybercrime.gov/IPTaskForceReport.pdf at 39 (October 2004). As Professor Fisher explained in a recent email to Defendant’s counsel, “[I]t’s not credible to argue that widespread P2P file sharing has not and will not give rise to ‘some meaningful likelihood of future harm’ to the revenues of the holders of copyrights in sound recordings and musical works.” (March 29, 2009 email from William Fisher to Charles Nesson)
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Response to Interrogatory No. 15: Plaintiffs object to this Interrogatory on the ground that it is vague and ambiguous. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the ground that it is overly broad and unduly burdensome. Additionally, Plaintiffs object to this Interrogatory as not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object that this Interrogatory has no bearing on whether Defendant’s copyright infringement constituted fair use. Since the Court has expressly limited discovery to fair use, it is improper. While some Plaintiffs have engaged in many different technical measures over the years, those measures are, in large measure, confidential and proprietary. Moreover, Plaintiffs are not required or obliged in any manner to employ technical measures in order to maintain or assert their copyrights.
Response to Interrogatory No. 16: Plaintiffs object to this Interrogatory on the ground that it is vague, ambiguous, and incomprehensible. Plaintiffs object to this Interrogatory to the extent it relies on the undefined 5 #1414876 v3 den
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term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory to the extent it relies on the undefined term “seed.” Plaintiffs have no idea what Defendant is referring to. Plaintiffs further object to this Interrogatory on the ground that it is overly broad and unduly burdensome. Additionally, Plaintiffs object to this Interrogatory as not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object that this Interrogatory has no bearing on whether Defendant’s copyright infringement constituted fair use. Since the Court has expressly limited discovery to fair use, it is improper. While some Plaintiffs have engaged in many different technical measures over the years, those measures are, in large measure, confidential and proprietary. Moreover, Plaintiffs are not required or obliged in any manner to employ technical measures in order to maintain or assert their copyrights.
Response to Interrogatory No. 17: Plaintiffs object to this Interrogatory on the ground that it is vague and ambiguous. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.”
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Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the ground that it is overly broad and unduly burdensome. Additionally, Plaintiffs object to this Interrogatory as not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object that this Interrogatory has no bearing on whether Defendant’s copyright infringement constituted fair use. Notwithstanding and without waiving the foregoing objections, sound recordings were widely available for legal digital download when Defendant was caught infringing on August 8, 2004. By that time, the following services, among others, were available: Amazon, Yahoo!, Sony Connect, Napster 2.0, MusicMatch, Music Now, and iTunes and were offering authorized digital downloads for purchase in the United States. Also by that time, there were companies offering online music subscription services in the U.S. These included, among others, Rhapsody, Launchcast and MusicNet . The iTunes Store came online for legal online music purchases in April 2003 with about 200,000 sound recordings available for download. See http://www.nytimes.com/2004/04/29/technology/29apple.html. At the time the iTunes Store launched in April 2003, it had already signed deals with the five major record labels, including all of the Plaintiffs in this case. As such, it is likely that many or most of the sound recordings at issue in this case were available online, through the iTunes Store, in April 2003.
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By 2004, over one million sound recordings were available for legal digital download and there were more than 230 online services available for consumers to purchase music legally online. See IFPI:05 Digital Music Report, available at http://www.ifpi.org/content/library/digitalmusic-report-2005.pdf. Prices vary based on service, rights, market, and currency. The most
popular site for legal digital downloads in the United States is iTunes which currently charges between $0.69 and $1.29 for most individual tracks of copyrighted sound recordings. Of course, the sound recordings at issue were also made available, without Plaintiffs’ consent, through online filesharing networks such as KaZaA. There is no price for such unauthorized downloads.
Response to Interrogatory No. 18: Plaintiffs object to this Interrogatory on the ground that it is vague, ambiguous, and incomprehensible. Plaintiffs object to this Interrogatory to the extent it relies on the undefined term “seven songs.” Plaintiffs are not sure which “seven songs” the Interrogatory references, since Plaintiffs are pursuing 30 sound recordings in this case, not seven. These recordings include the five recordings on Plaintiffs’ Second Amended Exhibit A and the 25 recordings on Plaintiffs’ Second Amended Schedule 1, produced in Supplemental Initial Disclosures in November 2008 and June 2009, and attached hereto for convenience. Plaintiffs further object to this Interrogatory on the ground that it is unrelated to fair use. Plaintiffs also object to this Interrogatory because it is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding and without waiving the foregoing objections, the copyrighted works are the sound recordings listed in both Plaintiffs’ Second
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Amended Exhibit A and Second Amended Schedule 1. The column entitled “SR” is the certificate of copyright registration number, as reflected on the certified copies of copyright registration reproduced to Defendant on June 19, 2009. The copyrights are the copyrights in sound recordings and includes all rights conveyed under the Copyright Act.
Response to Interrogatory No. 19: See objections and response to Interrogatory No. 18.
Dated: July3, 2009
As to objections: 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] Daniel J. Cloherty (BBO #565772) DWYER & COLLORA, LLP 600 Atlantic Avenue - 12th Floor Boston, MA 02210-2211 Telephone: (617) 371-1000 Facsimile: (617) 371-1037 [email protected] ATTORNEYS FOR Plaintiffs
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CERTIFICATE OF SERVICE The undersigned hereby certifies that on July3,2009, the foregoing PLAINTIFFS’ RESPONSES TO DEFENDANT’S SECOND SET OF INTERROGATORIES was served by United States Mail on the following: Charles Nesson 1575 Massachusetts Avenue Cambridge, MA 02138 [email protected] Attorney for Defendant
Eve Burton Eve G. Burton (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]
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