plaintiffs' brief re judge/jury divide on fair use

8/14/2019 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, ) Civ. Act. No. 03-cv-11661-NG) (LEAD DOCKET NUMBER)

v. ))

NOOR ALAUJAN, )Defendant. )

)

)SONY BMG MUSIC ENTERTAINMENT, )et al., Plaintiffs, ) Civ. Act. No. 07-cv-11446-NG

) (ORIGINAL DOCKET NUMBER)v. )

)JOEL TENENBAUM, )

)Defendant. )

)

PLAINTIFFS RESPONSE TO COURTS 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

Defendants two opposition briefs1

raises any issue of material fact. While the parties may

1Defendant filed his Opposition on July 17, 2009 (doc. 889) and filed a Memorandum

of Law to Supplement Defendants Opposition on July 20, 2009 (doc. 890), three days after thedeadline to file oppositions to summary judgment. See June 16, 2009 Order (Doc. 850) (SettingJuly 17, 2009 as deadline for oppositions to summary judgment).

Case 1:03-cv-11661-NG Document 892 Filed 07/20/2009 Page 1 of 16


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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 Defendants 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); Feltnerv. 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, 14561457

(1997); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV.L. REV. 1105 (1990). In his

Response to the Courts 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 Defendants

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. (citingHarper & 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, Defendants 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 Defendants 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.

Defendants asserted disputed issues are:



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Whether Defendants conduct in uploading and downloading sound recordings through aP2P network was commercial in nature. (Opposition at 5-6.);

Whether Defendants purpose was educational because he wanted to learn about themusic and share knowledge with friends. (Opposition at 6.);

Whether the sound recordings existence on the Internet in .mp3 files which Defendantcould 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 Defendants conduct had any discernable effect on the market for Plaintiffslegitimate sound recordings. (Opposition at 6-9);

Whether Plaintiffs assumed the risk by releasing the sound recordings when they knewthat music fans might upload the recordings to the Internet. (Opposition at 9.);

Whether Plaintiffs marketing activities contributed to the attractiveness of downloadingand uploading the recordings. (Opposition at 9.);

Whether the relative unattractiveness of permitted alternatives rendered legitimaterecordings unavailable. (Opposition at 9-10);

Whether it is fair to impose on parents the need to police their childrens activities andlive in fear that their children will fail to follow a rule they neither understand nor agreewith. (Opposition at 8.);

Whether it is fair to impose on schools and universities the necessity to enforce rules thatrun contrary to their educational mission and constrain the efficiency and experimentalreach of their information systems. (Opposition at 9.);

Whether the alleged disproportion of the legal cause of action and the threat of statutorydamages to the magnitude of Defendants actions renders his use fair. (Opposition at10.).

These arguments, as described below, have no merit and do not create a disputed issue of

fact sufficient to survive summary judgment.

1. Whether Defendants 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 Courts legal interpretation of Defendants

actions, summary judgment is appropriate.

Moreover, as demonstrated in Plaintiffs Motion, the Copyright Act itself concludes that

conduct such as Defendants 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 users claim that she was

a non-profit user). Accordingly, the Court should conclude that Defendants actions were

commercial.



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2. Whether Defendants 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 Defendants 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



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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 Venegas-



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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

Entmt 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 Defendants conduct had any discernable effect on the market for

Plaintiffs legitimate sound recordings.

Defendant argues that Plaintiffs have shown no discernable actual effect from

Defendants infringement. (Opposition at 6-9). First, Defendant misstates the standard. To

demonstrate entitlement to summary judgment, Plaintiffs do not have to show that Defendants

2 For example, all 13 sound recordings on Limp Bizkits Three Dollar Bill, Yall$ albumand 15 of the 16 recordings from Limp Bizkits Rearragned album were in Defendants sharedfolder when he was caught infringing. See Exhibit B to Complaint. Similarly, all 12 soundrecordings on Blink 182s Enema of the State album were in Defendants shared folder. See id.Also, 11 of the 18 sound recordings from Eminems Marshall Mathers LP album were inDefendants shared folder. See id.



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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, 41-

42). 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 P2Ps 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 Defendants sampling argument in their Motion. Indeed,

the Seventh Circuit squarely rejected Defendants 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 try-

before-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

courts 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, Defendants 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 Defendants

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 holders 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.



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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,

Defendants 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. Defendants

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 works 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 Publns, 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 inHarper & 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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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 Acts 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

colleges policies by using its network to infringe copyrighted sound recordings, that is not

relevant to the case at bar. Similarly, while Plaintiffs could engage Defendants 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 Defendants 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

Defendants constitutional challenge will not become ripe unless and until the jury awards

damages against Defendant.

Similarly, Defendants 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 Defendants 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 UMGRECORDINGS, 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 LLP1700 Lincoln, Suite 4100

Denver, Colorado 80203Telephone: (303) 861-7000Facsimile: (303) 866-0200Email: [email protected]

[email protected]@hro.com

Matthew J. Oppenheim (pro hac vice)THE OPPENHEIM GROUP7304 River Falls DrivePotomac, MD 20854

Telephone (301) 299-4986Facsimile: (866) 766-1678Email: [email protected]

Daniel J. ClohertyDWYER & COLLORA, LLP600 Atlantic Avenue - 12th FloorBoston, MA 02210-2211Telephone: (617) 371-1000Facsimile: (617) 371-1037Email: [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 sentelectronically 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

Case 1:03-cv-11661-NG Document 892-2 Filed 07/20/2009 Page 1 of 34


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Page 1

1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

2

3 VOLUME 1 PAGES 1-209

4

5 - - - - - - - - - - - - - - - - - - - - - - - -*

CAPITOL RECORDS, INC., ET AL,

6 Plaintiffs

VS. Case No. 03CV11661-NG

7 NOOR ALAUJAN, LEAD DOCKET NO.

Defendant

8 - - - - - -- - - - - - - - - - - - - - - - - - -*

SONY BMG MUSIC ENTERTAINMENT, et al,

9 Plaintiffs

VS. Case No. 07CV11446-NG

10 JOEL TENENBAUM, ORIGINAL DOCKET NO.

Defendant

11 - - - - - - - - - - - - - - - - - - - - - - - --*

12

13

14 CONTINUED DEPOSITION OF JOEL TENENBAUM,

taken on behalf of the Plaintiffs, taken pursuant

15 to Notice under the Massachusetts Rules of Civil

Procedure, before Kim M. Romaine, Notary Public

16 and Shorthand Reporter in and for the

Commonwealth of Massachusetts at the Office of

17 Dwyer & Collora, 600 Atlantic Avenue, Boston,

Massachusetts, on Wednesday, July 8, 2009

18 commencing at 9:30 a.m.19

20

21

22

23

24



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2 (Pages 2 to 5

Page 2

1 APPEARANCES:2 ON BEHALF OF PLAINTIFFS:3 EVE GOLDSTEIN BURTON, ESQ.

Holme Roberts & Owen, LLP4 1700 Lincoln Street

Denver, Colorado 80203-45415 303/866-05516 ON BEHALF OF PLAINTIFFS:7 MATTHEW J. OPPENHEIM, ESQ.

The Oppenheim Group8 7304 River Falls Drive

Potomac, Maryland 208549 301/299-4986

10 ON BEHALF OF JOEL TENENBAUM:11 CHARLES NESSON, ESQ.

1575 Massachusetts Avenue12 Cambridge, Massachusetts 02138

617/495-460913

ON BEHALF OF JOEL TENENBAUM:14 MATTHEW FEINBERG, ESQ.

Feinberg Kamholtz15 125 Summer Street

Boston, Massachusetts 0211016 617/526-070017 ALSO PRESENT:

Isaac Meister18 Victoria L. Steinberg, Esq.192021222324

Page 3

1 I N D E X

2 DEPOSITION OF: JOEL TENENBAUM

3 EXAMINATION BY MS. BURTON ...........PAGE 4

4 ...........PAGE 2055 EXAMINATION BY MR. FEINBERG .........PAGE 196

6

7

8

9 E X H I B I T S

10 No. Description Page

11 1 Packet 71

12 2 Letter 4/30/09 84

13 3 Schedule 1 107

14 4 Exhibit A 107

15 5 Packet 179

16 6 Packet 19617

18

19

20

21

22

23

24

Page 4

1 P R O C E E D I N G S2 MR. STEINBERG: No stipulations?3 MS. BURTON: No stipulations.4 JOEL TENENBAUM, the witness, having5 been duly cautioned and sworn, testified upon his6 oath as follows:7 - - - - - - - - - - - -8 EXAMINATION BY MS. BURTON:9 Q. Good morning, Joel.

10 A. Good morning.11 Q. As you know, I'm Eve Burton. I represent the12 plaintiffs in this case. I deposed you last13 time. Maybe nine months ago or so.14 A. You did.15 Q. Is there anything in that deposition that you16 no longer believe to be accurate?17 MR. FEINBERG: Objection. Motion to18 strike.

19 MS. BURTON: What?20 MR. FEINBERG: I said objection.21 Motion to strike. There are no stipulations on22 the record so I will objecting whenever I hear23 something that I do not like.24 MS. BURTON: Maybe I didn't

Page 5

1 understand. In a deposition, usually form and2 foundation need to be made. The rest are3 preserved. Is that the stipulation you were

4 referencing?5 MR. FEINBERG: Yes. There is a full6 range of stipulations that we normally do. I7 don't know whether you did it before with Joel's8 first deposition. We usually reserve all motions9 to strike and all motions except as to form until

10 the time of trial.11 MS. BURTON: That's fine.12 MR. FEINBERG: We also waive the13 filing and the notarization of it, but we usually14 have a 30-day period for Joel to read and sign15 the deposition and make corrections.

16 MS. BURTON: Obviously that is not17 going to work here.18 MR. FEINBERG: We will need the19 deposition well in advance of the trial in order20 to do that.21 MS. BURTON: Okay. As a preliminary22 matter, let me back up. I do want to say that I23 do understand, Mr. Nesson, you are recording this24 deposition on your audio recorder. We do object



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16 (Pages 58 to 61

Page 58

1 A. No longer had utility to me.

2 Q. Is that because of this lawsuit?

3 A. No.

4 Q. Why didn't that have utility to you?

5 A. It didn't get me music.

6 Q. Why?

7 A. I don't know.

8 Q. It stopped functioning?

9 A. Yes.

10 Q. Okay. Approximately how many songs did you

11 download using Morpheus?

12 A. No clue. Probably order of magnitude ten.

13 Q. Did you ever use stream cast on the Gateway?

14 A. No.

15 Q. Did you ever use Grokster?

16 A. No.

17 Q. So do you believe you've told me every peer to

18 peer you had on this Gateway computer?

19 A. I do believe I have.20 Q. Do you believe you had all five of these peer

21 to peers on the computer at the same time?

22 A. I have no idea. I used whatever program

23 seemed the most useful to me at the time.

24 Q. What do you mean by the most useful?

Page 59

1 A. The maximum amount of music sharing with the

2 minimal amount of wasted effort.

3 Q. When you were -- when LimeWire was on the

4 Gateway but you were not actively using it, did5 you take steps to -- what steps, if any, did you

6 take to shut the program down?

7 MR. FEINBERG: Objection. You are

8 asking him when he uninstalled it again?

9 MS. BURTON: No. If he was not

10 actually using it on his computer, did he click

11 on the X? Did he file close? Did he leave it

12 open?

13 BY MS. BURTON:

14 Q. What did you do with the program when it was

15 on your computer but you were not actively using

16 it?17 A. What did I do with a program when I wasn't

18 using it?

19 Q. So you are sitting down at your computer and

20 you are looking for music on LimeWire and then

21 you get up and you are done. What did you do to

22 LimeWire? Did you shut it down? Did you leave

23 it open? If you shut it down, how?

24 A. I imagine it depended.

Page 60

1 Q. What is your standard practice when you are

2 finished using a program?

3 A. I close the program.

4 Q. How do you do that?

5 A. You select close from the menu or you click

6 the X or you right click on the task bar and then

7 left click on close.

8 Q. Did you ever --

9 A. If it's a recalcitrant program, you will

10 control alt delete it and then you close it that

11 way.

12 Q. That is exactly what I'm trying to get at. Do

13 you know how you would close LimeWire, if at all?

14 A. Probably a variety of ways.

15 Q. Was it your practice to leave LimeWire running

16 while you were not using it?

17 A. I think so.

18 Q. Do you know what version of LimeWire you were

19 using?20 A. No clue.

21 Q. Did you ever upgrade LimeWire?

22 A. I don't think so.

23 Q. Was it your practice when you purchased a CD

24 to rip it onto your computer?

Page 61

1 A. You mean to copy it to the computer's hard

2 drive?

3 Q. Yes.

4 A. Absolutely.5 Q. So other than peer to peers and purchased CDs

6 that you uploaded and music you purchased from

7 iTunes, is there any other source of music on the

8 Gateway?

9 A. Yes.10 MR. FEINBERG: Can you say that

11 again? Other than what?

12 MS. BURTON: Other than music he

13 purchased from iTunes, music he got from peer to

14 peers and CD he purchased and unloaded how else

15 did music get on his computer.

16 A. Through face-to-face interactions with17 friends.

18 Q. I don't understand that.

19 A. The music can get onto the computer by either

20 using a program, whether it be a peer to peer

21 program or a network neighborhood type thing. I22 can also get it by buying the physical product

23 but buying it on iTunes. Also a friend could

24 share it with me through either a CD or a USB or



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28 (Pages 106 to 109

Page 106

1 Q. Okay. That would include -- let me just be2 clear. Do you contend that all of the movies you3 downloaded, copyrighted movies you downloaded

4 through peer to peer networks, that downloading5 was fair use?6 MR. FEINBERG: Objection. I am going

7 to instruct him not to answer that. That is way8 beyond the scope of this. There is nothing in9 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 him13 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 to17 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 peer23 network was fair use?24 MR. FEINBERG: Same instruction.

Page 107

1 MS. BURTON: You are instructing him2 not to answer?3 MR. FEINBERG: Yes.

4 (Exhibit Nos. 3 and 4 marked5 for identification).6 BY MS. BURTON:7 Q. Do you contend that your downloading of the8 five recordings listed on Exhibit 4 was fair use?9 A. Yes.

10 Q. Do you contend that your distribution of the11 five sound recordings listed on deposition12 Exhibit 4 was fair use?13 A. Yes.14 Q. Do you have any basis to -- is there any --15 does the basis of your fair use defense differ as

16 to any of these songs on deposition Exhibit 4?17 A. You mean differ by a song?18 Q. In any respect.19 MR. FEINBERG: She is asking you20 whether or not you have a different nuance of the21 fair use defense as to each individual song or is22 it all the same defense.23 A. Again, it's all a matter of the four factors,24 plus other factors that we think are appropriate

Page 108

1 for consideration.2 Q. And do they vary based on which of the3 recordings we are talking about on deposition

4 Exhibit 4?5 A. I think so.6 Q. Okay. What is the basis of your fair use

7 defense as it pertains to Incubus, recording8 title New Skin, album title Science?9 A. I will simplify the whole process here. I

10 think the first four are the same. Nirvana Come

11 as You Are might fall under fair use in a12 different way.13 Q. How?14 A. I own the album.

15 Q. So am I understanding you correctly that all16 five songs listed on deposition Exhibit 4, the17 basis of your fair use defense is the same except18 as to Nirvana; there is this additional aspect

19 that you own the album?20 MR. FEINBERG: Objection to the form.21 You can try to answer that if you can.

22 A. Yes.23 Q. Okay. And how does the fact that you own the24 album pertain to your fair use defense?

Page 109

1 A. As a question of sampling and purchase of2 commerciality, of money spent, I think it's3 relevant that I purchased the album of at least

4 one of these songs.5 Q. And so you listed the four things: Sampling,6 purchase, commerciality and money spent. How7 does the fact that you own the album pertain to8 your -- do you contend that sampling is a factor9 in fair use?

10 A. I'm not that well versed in fair use. I don't11 know the specifics or the limit or the full12 extent. I don't have all of it in my head.13 Q. I'm just trying to understand what you are14 telling me. You say that the fact that you own15 the album pertains to your fair use defense.

16 Actually, I will break it down. Does the fact17 that you own the album pertain to your fair use18 defense as applied to downloading of the19 recording?20 A. Yes.21 Q. Does the fact that you own the album pertain22 to the fair use of your distribution of the23 recording?24 A. I think so.



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32 (Pages 122 to 125

Page 122

1 BY MS. BURTON:

2 Q. When did you first use iTunes?

3 A. I don't know.

4 Q. Can you approximate?

5 A. I would guess in the second half of college.

6 Q. 2004, 2005, is that right?

7 A. I think it would be more likely 2005 through

8 2006.

9 Q. Before you downloaded a sound recording

10 through a peer to peer network, did you go and

11 look if you could get it anywhere on a legal

12 alternative?

13 A. Sorry?

14 Q. Before you downloaded a sound recording on a

15 peer to peer network did you first go and check

16 if it was available through a legitimate

17 authorized service?

18 A. The majority of what was downloaded on peer to

19 peer networks was available in a record store or20 amazon if amazon was around then.

21 Q. So you know the records were available. Could

22 you download individual tracks online legally?

23 A. It's possible I could have. I don't know if I

24 was aware of it at the time.

Page 123

1 Q. What is in fact my question. Before you

2 downloaded these -- we will start with Exhibit 4.

3 These five sound recordings on Exhibit 4 did you

4 first go and check whether there were any digital5 authorized alternatives for which -- on which you

6 could download these tracks?

7 A. You mean individually?

8 Q. Yes.

9 A. I don't remember if I checked, if I knew.

10 Q. Do you believe that you checked if there were

11 legal alternatives available before downloading

12 the five recordings on Exhibit 4?

13 A. It very much depends on how much I knew about

14 iTunes at the time. I don't recall when I

15 learned about iTunes, when I downloaded and

16 signed up with iTunes.17 Q. Do you know whether the five recordings listed

18 on Exhibit 4 were available on iTunes in August

19 of 2004?

20 A. I have no clue.

21 Q. Would that impact your fair use defense?

22 A. If I was aware if these were available on

23 iTunes?

24 Q. If they were available on iTunes.

Page 124

1 A. It's possible the actual availability of these

2 songs plays a factor as much as my awareness of

3 that availability.

4 Q. The question is did you believe. And your

5 answer is it's possible?

6 A. Those are not things I've considered in great

7 detail.

8 Q. I'm asking you to consider it now. Do you

9 believe that the availability of these songs on

10 iTunes, the songs listed on Exhibit 4 has an

11 impact on your fair use defense?

12 MR. FEINBERG: I will stop him. It's

13 the same question. I think it's now five or six

14 times. You have asked the same question. I will

15 instruct him not to answer it. You can take it

16 up with the judge.

17 BY MS. BURTON:

18 Q. What are the facts that support your fair use

19 defense?20 A. The context of my downloading and distributing

21 music, the laws as are written on books, anything

22 else that goes into a legal proceeding that is a

23 relevant fact.

24 Q. I'm asking you what those facts are?

Page 125

1 A. Well, those are what I can recall

2 specifically.

3 Q. So the context, what do you mean by that?

4 A. When and where and how much and the5 commerciality, whether I had purchased music

6 through pay sources.

7 Q. What do you mean by when?

8 A. Any number of other factors. My state of mind

9 at the time of downloading.

10 Q. So your --

11 A. My awareness.

12 MR. FEINBERG: I would like to take a

13 bathroom break at some point.

14 THE WITNESS: I have to too.

15 BY MS. BURTON:

16 Q. Finish your answer and then we will take a17 break.

18 A. The state of the music industry, its change,

19 my music buying and music downloading habits, my

20 discussion of the music with friends and family,

21 the sales and revenues of those songs. Possibly

22 other things I can't recall right now.

23 Q. Is that a complete list to the best of your

24 knowledge?



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plaintiffs' brief re judge/jury divide on fair use

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