Judge changes her mind: Tenenbaum is liable

Judge changes her mind: Tenenbaum is liable

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

SHARE:
TOPICS: CXO
5

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."

Topic: CXO

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

5 comments
Log in or register to join the discussion
  • In non-legal terms: "He's screwed".

    "Don't do the crime if you can't pay the fine."
    Hallowed are the Ori
  • I suspect...

    ...Tenenbaum is playing "martyr" here, hoping that public opinion will put pressure on the courts (or at least the jury). And it could work; there are plenty of people who think there is nothing wrong with making unauthorized copies of copyrighted material and distributing those copies to all and sundry.

    Carl Rapson
    rapson
    • Tenenbaum can only play martyr if...

      ...the RIAA tries to do its usual Draconian thing--which they're apparently doing:

      http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars

      "RIAA wins $675,000, or $22,500 per song..."

      $22,500/song is absurd and obviously meant to be punitive rather than compensatory, and that's exactly what gets public opinion fired up against the RIAA.

      Distributing copyrighted stuff may be wrong, but ruining people's lives is worse, and in the case of two wrongs, most people are going to root for the little guy.
      Henry Miller
    • Not happening.

      There's only two possibilities for him: be broke for the rest of his life, or make a deal with the RIAA and be their b!tch touring universities and telling kids how his life was ruined by installing demon P2P software and doing unholy trading of the sacred songs of the mighty record labels.
      terry flores
  • It looks like "willfullness" won't be much of an issue, either..

    His answer to the question pretty much states that he knew what he was doing when he did it. (Otherwise, he would've argued against his own laibility.)

    The fact of the matter is, there's not really any way that he can say he [i]didn't[/i] willfully distribute the songs. He could've chosen [i]not[/i] to distribute them.

    What his lawyer really needs to fight on is damages. He should only have to pay damages for what he [i]actually[/i] distributed.

    Assume $1/song x 30 songs.

    That means if he had 30 people downloading those songs from him, he's out $900. That sounds about right to me.

    Of course, that's not what'll actually happen, but the judge (judging from the transcript) at least sounds somewhat sympathetic, so hopefully things won't get too out of hand.
    bhartman36