Tenenbaum Lawyers Now Passing the Hat 388
NewYorkCountryLawyer writes "Just when you think this case couldn't get any stranger, it now appears that the defendant's 'legal team' in SONY BMG Music Entertainment v. Tenenbaum is passing the hat, taking up a collection. Only the reason for the collection isn't to defray costs and expenses of further defending the action, but to pay the RIAA the amount of the judgment so that their client won't have to declare bankruptcy. I would suggest there might have been a much better way of avoiding bankruptcy. It's called 'handling the case competently.'"
Re:obl. (Score:3, Informative)
Re:original summary is better (Score:1, Informative)
-St. John's University School of Law, J.D., cum laude, 1978
-Herbert H. Lehman College, B.A., 1968
-The Bronx High School of Science, 1964
It agrees with what mpoulton posted. Not a bad school, not an astoundingly big name either. If you graduate with honors, you probably know what you're doing.
Re:original summary is better (Score:3, Informative)
We don't need no stinking law school! [wikipedia.org]
Re:I have a question (Score:1, Informative)
I am not a lawyer.
One can't object on 5th Amendment grounds to questions of liability in civil cases, though one can refuse to answer on 5th Amendment grounds. However, in civil cases, factfinders are permitted to infer whatever they wish when the 5th Amendment privilege is invoked. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).
Re:I have a question (Score:3, Informative)
But I saw that the judge's rationale was that plaintiffs had asked the defendant "are you liable" and he said "yes". It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!"
In which case, the judge simply asks the attorney to rephrase his question or withdraw it.
It's a "harmless error." Changes nothing.
By that time Tennebaum had buried his defense six feet under and paved it over with cement.
Instead, over and over, Tenenbaum admitted under oath that he used KaZaA, LimeWire, and other peer-to-peer software to download and distribute music to others unknown. "This is me. I'm here to answer. "I used the computer. I uploaded and downloaded music. This is how it is. I did it," he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.
"Are you admitting liability for all 30 sound recordings" on which the record labels brought suit, asked the plaintiffs' attorney Tim Reynolds. "Yes," said Tenenbaum.
Tenenbaum then admitted that he "lied" in his written discovery responses, the ones in which he denied responsibility.
"Why did you lie at that point?" asked Tenenbaum's attorney, Harvard Law School professor Charles Nesson. "It was kind of something I rushed through," responded Tenenbaum. "It's what seemed the best response to give." At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.
During Tenenbaum's testimony, plaintiffs' attorney Tim Reynolds walked Tenenbaum methodically through the evidence, extracting scores of one, two, and three-word admissions that he did exactly what plaintiffs have accused him of doing.
"You used KaZaA to download music, right?"
"You used LimeWire to get music without paying for it, right?"
"Your goal was to obtain the maximum amount of music with the minimum amount of wasted effort, right?"
"Yes." "I did." "Yes, I did," Tenenbaum said calmly, over and over and over, in response to Reynolds' questions.
Tenenbaum admitted that the screenshots captured by MediaSentry in August 2004, showing over 800 song files in his KaZaA shared folder, were accurate representations of the contents of that folder.
He admitted that he listened to his copies of all 30 songs he is accused of downloading and distributing--negating Nesson's suggestion that some of them were actually fake files, "spoofs" put on peer-to-peer networks by copyright owners to frustrate users trying to obtain music for free.
And Tenenbaum accepted all of the conclusions of plaintiffs' computer forensics expert, Dr. Douglas Jacobson, as true. "I trust he's a competent professional," said Tenenbaum. Tenenbaum takes the stand: I used P2P and lied about it. [arstechnica.com]
Re:Does this set a precedence for the RIAA? (Score:5, Informative)
Only the decision of a court superior to the one making the decision is binding on it. That means that the decision of a trial court such as this does not constitute a binding precedent - only decisions of appellate courts constitute binding precedents, and then only on courts inferior to them. Thus, a decision of the Supreme Court is binding on all federal courts, but a decision of the Court of Appeal for the 9th Circuit is only binding within the 9th Circuit.
Re:Another way (Score:5, Informative)
I don't know whether or not you're joking, but just in case you aren't...
The fines were not adjusted to a level that was intended to keep people from file sharing. The fines were set long before Napster was ever contemplated. The fines were set back when a lone person wasn't the target of copyright law, companies were. For example, in China, where copyright is weak, people make lots of money pirating movies and selling them without paying any royalties to the people who make the movies. They were also designed to prevent people from setting up their own movie theater and selling tickets to a movie without sharing the profits. US copyright law is intended to prevent this type of piracy--people profiting from piracy.
What we have here is that RIAA lawyers discovered that a single person pirating a song or movie (but not profiting from it) happens to fit under the same definitions as those folks that sell pirated movies for profit.
Additionally, if I recall correctly, the fine scheme is set up such that a plaintiff can demand actual damages OR statutory damages. Statutory damages being included as an option because in the type of damage caused by a person selling pirated DVDs/CDs/tickets to their own illegit theater are often extremely difficult to prove. So Congress chose a number that would shut down a piracy business.
Immense fines don't do a very good job preventing people from downloading music because it just doesn't seem realistic. Because it's absurd. Individuals are reaping fines designed for companies. It's like getting the death penalty for stealing a CD (note, by the way--downloading music is not the same as stealing a CD--that record store had to pay for that CD).
Re:I have a question (Score:5, Informative)
Guilty and liable are two separate things. You can actually violate a law and not be liable to any of it's consequences.
The problem here I believe was that he didn't have the money to settle out of court until after they were committed to trial. At that point, he already talked to a lawyer who saw that he was probably guilty but not liable or at least liable to the extent of the out of court settlement.
When the judge asked if he was liable, the answer should have been no all the way. The big upset here is that the judge is the trier of facts, not a prosecutor or investigator. He shouldn't be able to ask the defendant misleading questions, he is supposed to let counsel present the evidence and then determine what happened. His lawyers should have objected to the question on those grounds alone and instructed Tenenbaum that his position was they he might be guilty but not liable. In fact, that was the position of his case with the constitutionality claims on the penalties and fair use claims and so on.
The question of whether you are liable when the issue is did you do X if so then you are liable is misleading at best because of the intrinsic connection to the guilt of an action. Comming from the judge is even worse. It's like waking someone from a deep sleep to ask them for permission to do something knowing they won't fulling comprehend the question and grant permission. Except in this case, he ended up admitting he was liable under the confusion which negated all of his other claims to a defense against the liability.
Re:I have a question (Score:3, Informative)
I wouldn't quite call them geeks, as a geek would be far less likely to get caught.
Excuse me for a moment. I seem to be choking on something.
Re:I have a question (Score:4, Informative)
Not true. They also represent a massive number of smaller labels:
http://en.wikipedia.org/wiki/List_of_RIAA_member_labels [wikipedia.org]
Some labels are not RIAA, but most are.
Re:So, instead of pushing for reason... (Score:3, Informative)
Actually, they were pushing for a reasonable fine. That's the part where the incompetency comes in.
The claim all along was that the fines were excessive, unconstitutional, and that he had fair use. When the judge who is the trier of facts, instead decided to play prosecutor and advocate for the plaintiff and ask the misleading question of "are you liable", the answer was too complicated for a yes or no but when he said yes, all of the rest of his claims were ignored.
The judge should not have been able to ask the question not only because it wasn't his role to investigate on behalf of the complainant, because he had filings noting the defendants position that he was challenging the validity of the amounts of liability. In short, the judge knew he was looking for a reasonable judgment and short circuited it in order to apply the law as written with no objections from his lawyers. The entire case seems like having the three stooges fix your plumbing with Groucho Marks as the site supervisor.
Re:I have a question (Score:3, Informative)
The guy made offers twice to give everything he had to the RIAA. He even mailed them over $5000. They returned his check.
Re:What is your problem with Eastern Europe? (Score:3, Informative)
That is quite insightful..
To your astute political analysis, I add the following snippet of pop culture: Don't forget what Eastern Europe has done for modern porn; if not for Eastern Europe you'd all be watching the same tired women from the San Fernando Valley.
Cum Laude (Score:1, Informative)
Ray Beckerman probably has a multitude of reasons for choosing his nickname but it won't be for lack of a degree as you can see from his short biography [beckermanlegal.com] he not only has a degree but cum laude acclamation as well. Also it indicates he did follow the path of Lincoln somewhat in that he worked his way through night school at a law firm, which might have a bit to do with his choosing that handle.
Oh and he has admitted in the past that he has gained a bit of an education here as he sought to learn more about computers and networking to improve his ability to defend his client via preventing the RIAA filling the court's ear with false and improper "facts" unchallenged. He has taught us many things as well.
Re:I have a question (Score:1, Informative)
But, that is not what he was asked, was it, Ray? You, a lawyer, should know that, but you want to spin it.
What was actually said? Let's take a look:
"This is me. I'm here to answer," said Tenenbaum. "I used the computer. I uploaded and downloaded music. This is how it is. I did it," he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.
"Are you admitting liability for all 30 sound recordings" on which the record labels brought suit, asked the plaintiffs' attorney Tim Reynolds.
"Yes," said Tenenbaum..
"Are you admitting liability for all 30 sound recordings" is not asking "Are you liable", it is asking "Are you doing what you seem to be doing". Completely different questions and you should know that. The fun part comes in that dumbass could have answered "No, I am not saying that".
Re:I have a question (Score:4, Informative)
This may be a bit pedantic, but in a jury trial such as this the judge is the trier of law and the jury is the trier of fact. If this was a bench trial however, you'd be correct - the judge would try both fact and law.
Re:I have a question (Score:1, Informative)
http://riaaradar.com/ you can put any band or label in and it will tell you if they are RIAA safe or not
Re:I have a question (Score:4, Informative)
They also represent a massive number of smaller labels
The litigation campaign has involved only the Big 4, plus their affiliates, and has not involved any of the smaller labels. But the dues of the smaller labels are helping the RIAA carry out its dastardly work on behalf of the Big 4. So I think all RIAA labels should be boycotted, and I frequently consult RIAA Radar [riaaradar.com].
Re:I have a question (Score:3, Informative)
What other arguments did these lawyers miss that a "good lawyer" wouldn't have missed?
I guess you haven't been reading my blog [blogspot.com]; it's all in there.
Re:I have a question (Score:3, Informative)
they kept offering to settle for a couple thousand dollars
Simply not true. I don't think they were ever willing to take less than $5000, non-negotiable. And then they kept raising the amount, making it impossible for him to settle.
Re:Cum Laude (Score:4, Informative)
Ray Beckerman probably has a multitude of reasons for choosing his nickname but it won't be for lack of a degree as you can see from his short biography [beckermanlegal.com] he not only has a degree but cum laude acclamation as well. Also it indicates he did follow the path of Lincoln somewhat in that he worked his way through night school at a law firm, which might have a bit to do with his choosing that handle.
Working in a law firm while attending law school was definitely a key factor in my legal training; the interaction between the two experiences was truly remarkable, and I would recommend it to anyone contemplating law school. It has nothing whatsoever to do with my choice of the Slashdot handle "NewYorkCountryLawyer". I chose that because I like to think of myself as a "country lawyer", albeit one stuck -- by the nature of his practice -- in a big city. To me, a country lawyer is a lawyer who uses common sense, cares about his clients, and conducts himself honorably first and foremost, because he wants to be able to hold his head up in the community. When I chose the name I was thinking of Sen. Sam Ervin, who famously introduced himself as "just a country lawyer", immediately before proceeding to bring the entire "tricky" Nixon administration to justice.
Oh and he has admitted in the past that he has gained a bit of an education here as he sought to learn more about computers and networking to improve his ability to defend his client via preventing the RIAA filling the court's ear with false and improper "facts" unchallenged.
Most decidely I have learned much on Slashdot, of many things.
He has taught us many things as well.
Thank you.
Re:I have a question (Score:3, Informative)
Well, the judges would have you think that.
"In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact." - Thomas Jefferson, Notes on Virginia (1782)
Link to Joel Tenenbaum's new statement (Score:3, Informative)