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Plaintiffs' Pretrial Memorandum

Plaintiffs' Pretrial Memorandum

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Published by Ben Sheffner
Plaintiffs' Pretrial Memorandum in Sony v. Tenenbaum
Plaintiffs' Pretrial Memorandum in Sony v. Tenenbaum

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Published by: Ben Sheffner on Jul 18, 2009
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04/18/2013

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#1418636 v1 den
 UNITED STATES DISTRICT COURTDISTRICT 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, ))Defendants. ))
PLAINTIFFS’ PRETRIAL MEMORANDUM
The following is the Plaintiffs’ Pretrial Memorandum to be considered at the PretrialConference on July 20, 2009, at 9:30 A.M.
1.
 
Names, addresses and telephone numbers of trial counsel:Plaintiff(s):
 Timothy M. ReynoldsEve G. BurtonHOLME ROBERTS & OWEN LLP1700 Lincoln Street, Suite 4100Denver, CO 80203Telephone: (303) 861-7000Facsimile: (303) 866-0200timothy.reynolds@hro.comeve.burton@hro.comMatthew J. Oppenheim
Case 1:03-cv-11661-NG Document 886 Filed 07/17/2009 Page 1 of 20
 
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#1418636 v1 den
 THE OPPENHEIM GROUP7304 River Falls DrivePotomac, MD 20854Telephone (301) 299-4986Facsimile: (866) 766-1678matt@oppenheimgroup.netDaniel J. ClohertyDWYER & COLLORA, LLP600 Atlantic Avenue - 12th FloorBoston, MA 02210-2211Telephone: (617) 371-1000Facsimile: (617) 371-1037dcloherty@dwyercollora.com
Defendant:
 Charles NessonHarvard Law School1575 Massachusetts Ave.Cambridge, MA 02138Telephone: 617-495-4609nesson@law.harvard.eduMatthew H. FeinbergFEINBERG & KAMHOLTZ125 Summer StreetBoston, MA 02110-1621Telephone: (617) 526-0700mattfein@feinberg-kamholtz.com
2.
 
Whether the case is to be tried with or without a jury:
The case is to be tried with a jury.
3.
 
Summary of the positions asserted by all parties with regard to liability anddamages:Plaintiffs:
Plaintiffs are the copyright owners or licensees of exclusive rights under United Statescopyright of each of the thirty (30) sound recordings listed on Plaintiffs’ Second AmendedExhibit A and Second Amended Schedule 1 (Plaintiffs’ Exhibits 1, 2) (“Sound Recordings”).The Sound Recordings are subject to valid Certificates of Copyright Registration issued by the
Case 1:03-cv-11661-NG Document 886 Filed 07/17/2009 Page 2 of 20
 
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 Register of Copyrights (Plaintiffs’ Exhibits 3,7, 11), and Plaintiffs’ copyright registration foreach of the Sound Recordings was effective prior to the dates indicated on the registrations.Plaintiffs brought this lawsuit alleging that Defendant used the KaZaA file sharing program toreproduce and distribute Plaintiffs’ Sound Recordings online in violation of the Copyright Act.MediaSentry has been engaged to assist Plaintiffs in locating individuals infringing theircopyrights over peer-to-peer networks. On August 10, 2004, at approximately 12:49 a.m. EDT,MediaSentry discovered an individual using the KaZaA file-sharing program on the FastTrack network distributing 816 digital sound recordings to other users of the network, including manyof Plaintiffs’ copyrighted sound recordings, and specifically including Plaintiffs’ 30 SoundRecordings at issue in this case. This individual’s computer connected to the Internet at IPaddress 68.227.185.38. The KaZaA username for the individual at IP address 68.227.185.38 onAugust 10, 2004 at approximately 12:49 a.m. EDT was “sublimeguy14@KaZaA.”The Internet Service Provider (“ISP”) for the computer with IP address 68.227.185.38 onAugust 10, 2004 was Cox Communications, Inc. (“Cox”). Information provided by Cox inresponse to a Rule 45 subpoena identified J. Tenenbaum, at 20 Upton Avenue in Providence,Rhode Island, as the subscriber of record for IP address 68.227.185.38 on August 10, 2004 atapproximately 12:49 a.m. EDT. (Plaintiffs’ Exhibit 23).Prior to August 10, 2004, Defendant, Joel Tenenbaum, had installed the KaZaA filesharing program, created the “sublimeguy14@KaZaA” username, and used the KaZaA programand sublimeguy14@KaZaA username on his computer at 20 Upton Avenue to download anddistribute music over the Internet. Defendant specifically knew that, unless the program defaultswere changed, KaZaA was configured to share all of the files in his KaZaA shared folder withthe millions of other people on the file sharing network. Defendant admits that Exhibit B to
Case 1:03-cv-11661-NG Document 886 Filed 07/17/2009 Page 3 of 20

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