Did the Tenenbaum Judge Botch It?

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)…

12 Responses to “Did the Tenenbaum Judge Botch It?”

  1. actually, I think the defense did object to Joel being asked, and admitting, if/that he was liable, on the grounds that Joel didn’t understand the implications. objection was overruled. botched? you could say that.

  2. I agree with Derek. Whatever you think of the RIAA, the ruling on fair use, or the overruling of the liability question, the admissions discussed in the main post (if accurate) are more than enough to rule as a matter of law. There is no countervailing fact I can think of that a rational jury could have relied on to say that the various rights weren’t infringed. I’ve won summary judgment of infringement with less direct evidence than this.

  3. I was in the courtroom. My best recollection is that the defense did NOT object to the “do you admit liability?” question, so, yes, the issue is waived. Derek is correct that the actual facts to which Tenenbaum admitted (which included as well a wholesale endorsement of the conclusions of plaintiffs’ expert Dr. Jacobson) established liability under Rule 50 beyond any doubt. (For the record, Beckerman was not in the courtroom; his guest-blogger Marc Bourgeois was.)

    And one additional point: on Wednesday, Tenenbaum’s lawyer Matthew Feinberg did explicitly concede liability, stating (outside the presence of the jury): “We’re admitting liability, your honor.”


  4. Thanks, all! This is fascinating.

    @Ben: it’s terrific to have a first-hand account, and I’m enjoying your writing for C&C / A.T. Do you think that Feinberg’s statement explains why Nesson et al. didn’t bother to object or fight harder on liability? (I think they had a tough fight there, but I might have put up more of a struggle, at least for the record).

    @Michael: is there any different you would have tried in Nesson’s shoes?

    @observer: do you think Gertner handled the trial poorly overall? (My view is that she did well, under somewhat unusual circumstances.)

  5. I’ll add my two cents as a former First Circuit clerk and a current civil procedure professor.

    1. The facts from the direct testimony (again, if accurately reported) make an easy case for directed verdict — what the Federal Rules now call “judgment as a matter of law.” As Derek says, Judge Gertner can get there even if she ignores the answer to the “liability” question.

    2. The First Circuit is quite hard-core on waiver. If the defense didn’t object to that question they are stuck. (Though it may not matter, see #1).

    3. Gertner is a conscientious judge.

  6. I doubt there was much else that could have been done – a good judge is never going to let such a settled question get to the jury for possible nullification. I’m surprised it didn’t get answered at summary judgment.

    I think the only thing to have been done was to get Tennenbaum to appear more sympathetic (difficult from what I’ve seen of the record) and hope for some help on appeal with respect to fair use and/or damages. This was a losing battle at the trial stage, which is why the RIAA pushed so hard, I suppose.

    All that said, I think the focus on the liability question is overblown. Even without an objection “liability” means many things, and you could always argue on a JMOL motion that it meant only for one song, only in a moral but not legal way, etc. and that a jury could have understood the question differently. It’s the underlying facts (and an attorney statement to the Court) that’s the killer.

  7. One modification to the above, lest I get a swarm of comments. Sometimes a good judge might let the question go to the jury, but then might issue JMOL to get it right later. See, e.g. Lori Drew.

    But in this case, if the jury got it wrong, there would be no answer to the damages question, and the case would have to be retried after a JMOL granting judgment. Thus, it seems more prudent to get the damages number and let the appeals court have full information.

  8. Botch it? Geez, this judge bent over backwards for this defendant. She got Nesson to handle the case. She tried to allow the case to be webcast so that Nesson could achieve his pr goals. But as she said at one point to Nesson “you have given me nothing.” She must have swallowed hard before she had to throw out fair use and then direct a verdict for liability. I think team tenenbaum has to be wondering whether their real fight on statutory damages will ever happen. If Gertner does what they expect and overturns the damages, then they’ll still have enough of an uphill battle to preserve that ruling, especially when the doj comes in to defend the statute. But if gertner really has had enough and doesn’t overturn the award, they have no shot and the real fight will be in bankruptcy court where these plaintiffs will argue vociforously against discharge on grounds of wilfulness.

  9. @Derek:

    Thanks for the kind words; the trial was fascinating.

    “Do you think that Feinberg’s statement explains why Nesson et al. didn’t bother to object or fight harder on liability?” Not really. I think that once Judge Gertner granted SJ on fair use (which was the only possible decision under the law), they were left defenseless. There was simply no Plan B on liability. The evidence was overwhelming, from MediaSentry, from Dr. Jacobson, and from Tenenbaum’s previous admissions at his 2 depos. (Yes, he lied about certain details at his 1st depo and in written discovery, but he admitted that he had downloaded and “shared” music for years.) Tenenbaum really had no choice but to cop to everything once he took the stand. Had he denied using p2p, he would have been shredded on cross (technically direct, since the plaintiffs called him), and even risked a perjury prosecution.

    Given the facts and the law, the only viable option at trial was to try to argue that Tenenbaum himself caused little or no harm. But the problem was that they had no actual evidence to counter the conclusions of plaintiffs’ economist, Stanley Liebowitz, who even Nesson admitted in closing was a very persuasive witness. They could poke holes in the plaintiffs’ arguments, but they had no evidence of their own on harm. As I wrote, one of the defense’s biggest, and most costly, mistakes was their failure to retain their own economic expert: http://copyrightsandcampaigns.blogspot.com/2009/07/team-tenenbaums-biggest-mistake.html

    And all that said, the bottom line is that Tenenbaum should have settled long ago, in the mid 4 figures, when he had the chance. Now he’s famous, and a hero/martyr to many, but 25 years old and $675,000 in debt. A few weeks from now, CNN will stop calling, and he’ll still be $675,000 in debt — not a good place to be at the start of one’s adult life. (Though yes, I think there’s a decent chance either Judge Gertner or the First Circuit will reduce the award.)

  10. These lawsuits are a bit out of control. On the one hand I don’t like to see people stealing music but on the other side you have the RIAA trying to crush the little guys out there just to make a point.

    This is only going to get worse until the RIAA implements a better model to allow users full access to their own music.

  11. @Ben: your update is, well, shocking – I can’t believe that the defense team wasn’t able to get in touch with Oberholzer-Gee. It’s just not a long walk to the B-school from HLS.

    Liebowitz is expert in this zone, and the defense did a good job of asking him about his Network Economy book (which I like), but his conclusions are hardly canonical.

    I have to look this up, but I’m curious about the standard of review if 1) Judge Gertner modifies the damages, and 2) the plaintiffs challenge that modification. I actually think the First Circuit may not be friendly to a reduction.

    thanks again!

  12. I think the only thing to have been done was to get Tennenbaum to appear more sympathetic (difficult from what I’ve seen of the record) and hope for some help on appeal with respect to fair use and/or damages. This was a losing battle at the trial stage, which is why the RIAA pushed so hard,