CyberOne: Law in the Court of Public Opinion

We have said from the very start that Joel is just one of many people who have been thrown into the RIAA litigation machine. In October 2007, Jammie Thomas was found guilty on 24 counts of copyright infringement by a federal jury in Duluth, Minnesota. She was ordered to pay $224,000 in damages. But in September of this year, the presiding judge set aside the verdict and declared a mistrial.

It has recently come to our attention by way of Jammie’s counsel that a motion for a new trial (or alternatively, for remittitur) has been filed with the court. What’s significant — and heartening — is their argument.

Defendant’s singular grounds for the relief sought is that the amount of the
award is excessive and in violation of the Due Process Clause of the United States
Constitution.

You can read the text of the motion here.

We are not the only ones who now realize that the verdicts from these cases threaten fundamental rights guaranteed to all citizens under our Constitution.

Prof. Nesson and the CyberOne litigation team have had the good fortune to be connected with someone who knows about the flawed methodology and ‘creative accounting’ the RIAA uses to calculate damages: Andrew Grant, a former employee of Macrovision, one of the most prominent DRM companies in the field today. Here’s what he had to say:

———- Forwarded message ———-
From: Andrew Grant
Date: Mon, Nov 10, 2008 at 12:58 PM
Subject: Re: Greetings and Thanks
To: Charles Nesson , Andrew Grant , Nnamdi Okike , Shubham
Mukherjee , Matthew Sanchez , Dmitriy Tishyevich , Isaac Kriegman

Thank you, Professor Nesson.

All, please let me know how I might be of assistance. Prior to moving back
to Boston last year, I was part of the global studio anit-piracy group at
Macrovision (MVSN). While at MVSN, I ran sales and strategy for the core p2p
antipiracy product. While they may be now in some need of revision, the
models we built and used to measure secondary propogation of our “spoofs” on
the major p2p networks might be of some use in your efforts to quantify
damages in the Tennenbaum case. In addition, I remain in contact with the
digital anti-piracy leads at most of the major Hollywood studios and would
be happy to seek their opinion on any questions that come up.

Unfortunately, I don’t have the depth of contacts in the music industry.
That business was already busted by the time I got to Macrovision.

Best,

Andrew

On 11/6/08 10:27 AM, Charles Nesson wrote:

andrew, let me introduce you to our cyberone riaa group.

we would like to work with you and you with us in dealing with riaa’s expert
and in establishing the amount of actual damage. my students will be in
touch with you. thanks.

On Wed, Nov 5, 2008 at 12:58 PM, Andrew Grant wrote:

Professor Nesson,

I thought I reach out to you on this fine, fine American afternoon to thank
you for sharing your wisdom in Harry Lewis’ class on Monday evening. When I
was at Macrovision, the DMCA did effectively pay my rent. But it was through
my work with Macrovision, and with people like Richard Atkinson of Disney
and Mitch Singer at Sony Pictures, that I started to complexity of
interaction between policy, technology, copyright and commerce in the world
of digital media.

When I moved backed to Boston last year after leaving Macrovision and the
west coast, I feared that my focus on these interactions would dull. I was
so happy to discover the Berkman Center when I started in Prof Lewis’ class
this fall.

Before I end this email, I’d like to make you a serious offer. I know you
have every available resource at your disposal, but if there is any way I
can be of service in your defense of Joel Tennenbaum, please let me know. My
contacts are more in the anti-piracy realm of the MPAA and the studios, but
I would be happy to contact them if there is anything you need.
(Particularly if you end up having to quantify the cost of infraction on an
open P2P exchange – I built models around this very issue when I was at
MVSN.)

And if you have any essential reading in this realm to recommend, I would
appreciate it.

My best,

Andrew

As a PS, I saw on your blog that you are having lunch with Yochai Benkler
today. Probably now, in fact. I just started his book, mind wide open.

Matt Sanchez from the RIAA group explains why we’re moving to quash the subpoena against Joel’s sister, and how it fits into the broader pattern of using civil process to victimize Joel.

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