Judge changes her mind: Tenenbaum is liable

Another day, another crazy turn in the Tenenbaum trial. First Joel admits that he downloaded and uploaded a multitude of songs.

Another day, another crazy turn in the Tenenbaum trial. First Joel admits that he downloaded and uploaded a multitude of songs. So the plaintiffs ask for a directed verdict (taking the decision away from the jury) on the issue of liability and other issues. Yesterday the judge denied the motion, "out of an abundance of caution."

But this morning she changed her mind based on a review of the transcript, which showed this interaction:

Question: "On the stand now, are you admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?"

Answer: "Yes."

That resulted in this order from the court:

Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages.

Ray Beckerman makes the excellent point that this interchange was a "legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer."

That is, as a lay witness, Tenenbaum can only testify as to what he has personal knowledge of. He could testify that he uploaded music to Kazaa, that he knew for a fact that others had downloaded the files he uploaded, that he intended others to download, etc. Those are facts that a judge or jury could find amounted to violation. But whether he is liable or not is not an issue that Tenenbaum is competent to answer.

That said, it seems like harmless error, in that Tenenbaum has in fact admitted to all facts necessary to make just that finding. Based on his admission, there are no facts in controversy for a jury to evaluate. So the directed verdict seems appropriate on that basis but not this admission of "liability."

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