Intellectual Property Law

Did the Tenenbaum Judge Botch It?

By Tim Armstrong, Derek Bambauer, and William McGeveran.

As you know, Joel Tenenbaum lost against the RIAA and is now on the hook for $675,000, pending a hearing on the constitutionality of those damages. Several lawyers I’ve talked with have suggested that Judge Nancy Gertner, who presided over the trial, committed reversible error by issuing a directed verdict on the question of infringement. They point to Tenenbaum’s answer to a question of admitting liability, arguing this is a conclusion of law and not of fact, and that hence summary judgment based on it is improper.

I wasn’t at the courtroom, so I’m relying on reporting / blogs, but I think they’re wrong. Here’s why.

First, Tenenbaum’s attorneys failed to object to the liability question. So, it’s not preserved for appeal. That’s bad, unless the First Circuit decides to tackle it sua sponte, which they won’t.

Second, look at Joel’s actual testimony (quotes from Ray Beckerman’s helpful site, emphasis mine):

“He also testified that he had used the sublimeguy14 username, admitted that he had used KaZaA, and that the KaZaA shared folder in the screenshots from MediaSentry were his. He also testified that it was not uncommon for him to see other people uploading files from him on the KaZaA traffic tab.”

“He testified that he had burned CDs of the music in his shared, and testified that he had ripped CDs to his computer.”

“He testified that he had listened to, talked about, made mixes of, and made available for distribution all of the music in his shared folder.” [ignore the distribution part]

“The redirect was very short… He was asked if he was now admitting liability, to which he said yes. ”

Even throwing out the redirect, if Beckerman is reporting this accurately (I trust him), Tenenbaum has admitted to facts that constitute violations of 17 USC 106(1), 106(2), and 106(3). The liability bit came on redirect and can be ignored without affecting the outcome. The plaintiffs thus clearly made out their case on chief on infringement, and since Tenenbaum’s fair use defense was shot down ahead of time, it was all over but the shouting (and the damages calculation)…

Full post as published by Info/Law on August 01, 2009 (boomark / email).