Case 1:07-cv-11446-NG Document 17 Filed 10/16/2009 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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

PLAINTIFFS’ ASSENTED TO MOTION FOR LEAVE TO FILE REPLY IN SUPPORT

OF PLAINTIFFS’ MOTION FOR ENTRY OF JUDGMENT

Plaintiffs respectfully request leave to file a short reply in support of their Motion for

Entry of Judgment and Permanent Injunction (Doc. No. 13). Defendant’s Opposition (Doc.

No. 14) raises numerous arguments that do not respond in any way to the substance of Plaintiffs’

Motion and are premature since no judgment has been entered. Therefore, Plaintiffs seek leave

to file a reply (attached as Exhibit A) in order to briefly address multiple issues raised in

Defendant’s Opposition.

Plaintiffs have conferred with counsel for Defendant regarding this Motion for Leave.

Defendant consents to the Motion.

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Respectfully submitted this 16th day of October, 2009.

SONY BMG MUSIC ENTERTAINMENT;

WARNER BROS. RECORDS INC.;
ATLANTIC RECORDING CORPORATION;
ARISTA RECORDS LLC; and UMG
RECORDINGS, 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 LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
Email: timothy.reynolds@hro.com
eve.burton@hro.com
laurie.rust@hro.com

Matthew J. Oppenheim (pro hac vice)

THE OPPENHEIM GROUP, LLP
7304 River Falls Drive
Potomac, MD 20854
Telephone (301) 299-4986
Facsimile: (866) 766-1678
Email: matt@oppenheimgroup.net

Daniel J. Cloherty
DWYER & COLLORA, LLP
600 Atlantic Avenue - 12th Floor
Boston, MA 02210-2211
Telephone: (617) 371-1000
Facsimile: (617) 371-1037
dcloherty@dwyercollora.com

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent
electronically 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 October 16,
2009.

s/ Eve G. Burton

3
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EXHIBIT A
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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ENTRY OF JUDGMENT

Plaintiffs’ Motion for Entry of Judgment (“Motion”) is a simple one. Plaintiffs seek

entry of judgment based on the jury’s July 31, 2009 verdict and on Plaintiffs’ request for

injunctive relief under section 502 of the Copyright Act. (Doc. No. 13.)

Rule 58 requires the prompt entry of judgment upon a jury verdict. See Fed. R. Civ. P.

58(b)(2). Here, the amount of the jury’s verdict is undisputed. The only question, therefore, is

the scope of the injunction sought in Plaintiffs’ Motion.

Defendant’s Opposition (Doc. No. 14) to Plaintiffs’ Motion focuses primarily on issues

that have nothing to do with the relief requested by Plaintiffs. Specifically, Defendant spends the

majority of his Opposition arguing about perceived errors made by the Court, which, Defendant

contends, require a new trial. While Plaintiffs vehemently disagree with Defendant’s arguments

for a new trial, those arguments are not properly before the Court because (1) the arguments go

far beyond the scope of Plaintiffs’ Motion, and (2) the Court has not yet entered judgment. The

Court’s September 15, 2009 Order granting Defendant’s Motion for Extension of Time gave

Defendant additional time to “file his objection to plaintiffs’ motion for entry of judgment by

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October 5, 2009,” not to raise additional issues that are more properly addressed in post-

judgment motions. Defendant’s post-trial motions should not be addressed before the Court has

entered its judgment based on the jury’s verdict and on Plaintiffs’ request for an injunction.

By seeking to raise post-trial arguments before any judgment has been entered,

Defendant apparently seeks to litigate his post-trial arguments twice. Defendant states as much

in footnote 2 of his Opposition, where he warns of his intention to raise these and other issues in

a subsequent motion once judgment enters. Defendant’s approach is both improper and

inefficient. Plaintiffs will rebut each and every one of Defendant’s arguments for post-trial

relief—because such arguments are factually inaccurate, legally without merit, or both—but

Plaintiffs should not be required to do so twice, and should not be required to do so before the

Court enters judgment.

Therefore, Plaintiffs will not address Defendant’s post-trial arguments at this time, but

will instead limit their reply to the issue at hand—namely, the scope of the injunction to be

entered as part of the judgment. Once judgment enters, Defendant may raise his colorable post-

trial motions in accordance with the rules.

PLAINTIFFS ARE NOT SEEKING A GAG ORDER

Turning to Plaintiffs’ request for an injunction, as an initial matter, Defendant’s

Opposition mischaracterizes the relief requested by Plaintiffs. As stated clearly in Plaintiffs’

Motion and in the proposed language of the injunction, Plaintiffs ask that Defendant be enjoined

from committing copyright infringement or acting in concert with others in committing copyright

infringement, both actions which the law prohibits anyhow. The requested injunction is neither

unusual nor unwarranted. Contrary to Defendant’s contention, Plaintiffs are not seeking to limit

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or prevent Defendant or his counsel from discussing this case or the perceived policy issues

implicated by this case in any forum they choose.

Plaintiffs are also seeking an injunction that Defendant destroy the infringing recordings

that, to date, he has refused to destroy. While Defendant’s counsel claims Defendant now has

lawful copies of the 30 recordings on which a verdict was rendered, the evidence at trial

established that Defendant has thousands of infringing recordings. Moreover, whether or not he

has now acquired the recordings lawfully, he needs to destroy the unlawful copies. Defendant’s

implicit argument that his post-trial conduct somehow cleanses his pre-trial infringement, is

simply wrong. Defendant should not benefit from his copyright infringement and should be

required to destroy all copies of the sound recordings that he obtained illegally. Such an

injunction is essential to the protection of Plaintiffs’ rights and imposes no burden on Defendant.

See 17 U.S.C. § 503(b) (“As party of a final judgment or decree, the court may order the

destruction . . . of all copies or phonorecords found to have been made or used in violation of the

copyright owner’s exclusive rights, and of all . . . tapes . . or other articles by means of which

such copies or phonorecords may be reproduced.”); Christopher Phelps & Assocs., LLC v.

Galloway, 492 F.3d 532, 546 (4th Cir. N.C. 2007) (“In the garden variety piracy case, such

orders [for destruction of the infringing materials] are routinely issued.”); BMG Music v. Roma's

Record Corp., 2009 U.S. Dist. LEXIS 87588 (E.D.N.Y. Aug. 19, 2009) (“Although, forfeiture

and the ordered destruction of infringing works is within the court's discretion, such relief is

appropriate to ensure against future infringements.”).

THE INJUNCTION SOUGHT HERE IS LIMITED AND APPROPRIATE

In his Opposition, Defendant does not cite a single instance where a court has denied an

injunction under circumstances like those presented in this case. Nor could he. The evidence at

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trial showed that Defendant engaged in massive infringement for years, both uploading and

downloading thousands of copyrighted songs on multiple peer-to-peer platforms, and that he

continued to engage in copyright infringement after repeated warnings that his conduct was

illegal and that he should stop. Defendant continued to infringe during the course of this lawsuit

and stated under oath that, even today, he does not regret his infringement. Post trial, Defendant

has made it clear that he has no intention of satisfying any portion of the jury’s verdict against

him. A broad injunction enjoining Defendant from engaging in continued online copyright

infringement is, therefore, required in this case.

Defendant’s contention that Plaintiffs’ injunction request does not “fit” the four factor

test of CoxCom, Inc. v. Chaffee, 536 F.3d 101 (1st Cir. 2008), has no merit. Plaintiffs’ Motion

more than satisfies the CoxCom standard for injunctive relief.

Irreparable Harm

First, Defendant’s Opposition does not challenge the unbroken line of authority in the

First Circuit holding that, in a copyright case, irreparable harm is presumed once infringement

has been established. See Concrete Machinery Co. v. Classic Lawn Ornaments, Inc., 843 F.2d

600, 611 (1st Cir. 1988) (once infringement has been established, irreparable harm is presumed

in copyright infringement actions); United States v. Mass. Water Res. Auth., 256 F.3d 36, 51 n.5

(1st Cir. 2001) (“when Congress decides to make available the remedy of injunction for

violations of a statute’s substantive provisions, irreparable injury is presumed to flow from such

violations.”); see also Commerce Bank & Trust Co. v. TD Banknorth, Inc., 554 F. Supp. 2d 77,

87 (D. Mass. 2008) (“In the context of trademark litigation, irreparable harm is generally

presumed if a plaintiff demonstrates a likelihood of success on the merits.”).

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Defendant’s argument that Plaintiffs offered no proof of any “real harm” is simply

wrong. Plaintiffs presented substantial evidence at trial regarding the difficulty of measuring

damages from P2P copyright infringement due to the fact that online “piracy typically takes

place behind closed doors and beyond the watchful eyes of a copyright holder.” Warner Bros.

Records, Inc. v. Payne, No. 06-cv-51, 2006 U.S. Dist. LEXIS 65765, *10 (W.D. Tex. July 17,

2006); see also Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 343-44 (S.D.N.Y.

2000) (“[D]ifficulties [in calculating damages in copyright cases] have led to the presumption

that copyright and trademark infringement cause irreparable injury, i.e. injury for which damages

are not an adequate remedy.”) MediaSentry’s Chris Connelly testified that the very nature of

KaZaA is to allow anonymous file sharing and, as a result, to prevent copyright holders from

being able to record or even monitor every act of infringement over the P2P network.

Notwithstanding these difficulties, Plaintiffs’ evidence showed that Defendant uploaded

and downloaded thousands of copyrighted songs on multiple peer-to-peer platforms for years,

even during the course of the lawsuit, resulting in a viral form of copyright infringement. See

also Reimerdes, 111 F. Supp. 2d at 331-32 (the distribution of digital works via the Internet “is

exponential rather than linear,” and “threatens to produce virtually unstoppable infringement of

copyright.”). Plaintiffs’ witnesses, including Wade Leak, JoAn Cho and Silda Palerm, testified

at trial and demonstrated to the jury that many of the sound recordings from Defendant’s

computer and KaZaA shared folder were exact replicas of Plaintiffs’ copyrighted sound

recordings. The sound recordings illegally obtained by Defendant, and his distribution of these

sound recordings to other peer-to-peer users, compete directly with Plaintiffs’ copyrighted works

and result in significant losses in sales of the legitimate works. See Warner Bros. Entm’t Inc. v.

RDR Books, 575 F. Supp. 2d 513, 552 (S.D.N.Y. 2008) (granting injunction where infringing

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works cause irreparable harm to sales of legitimate works). Plaintiffs’ fact and expert witnesses

also testified to the substantial harm caused by the massive distribution of Plaintiffs’ copyrighted

sound recordings over peer-to-peer networks such as KaZaA, including lost revenues, layoffs,

and a diminished capability to identify and promote new talent. The harm from Defendant’s

infringement is thus, incalculable, requiring entry of an injunction prohibiting him from

continuing his illegal conduct.

Legal Remedy is Inadequate

Second, Defendant’s contentions that a monetary judgment would be sufficient, and that

Plaintiffs seek an injunction only out of vengeance, likewise have no merit. To begin with,

Defendant has stated repeatedly that he has no intention of satisfying any judgment against him

and that he intends to file for bankruptcy protection. (See Nate Anderson, “Team Tenenbaum to

fight on for those ‘RIAA has screwed over,’” ArsTechnica, August 9, 2009 (available at

http://arstechnica.com/tech-policy/news/2009/08/charlie-nesson-still-fights-for-those-riaa-has-

screwed-over.ars) (“Tenenbaum has a plan for dealing with the damages. If Nesson’s work fails

to get him off the hook, ‘I declare bankruptcy.’”)). Thus, Plaintiffs may not recover anything

from a monetary judgment. Accordingly, a monetary judgment alone does not provide an

adequate remedy for Defendant’s years of illegal conduct. Moreover, Defendant admitted at trial

to repeatedly lying to Plaintiffs and to this Court about his illegal conduct. Without an

injunction, there is no assurance that he will not continue his infringement and the resulting harm

to Plaintiffs.

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Balance of Hardships

Third, Defendant’s bald assertion that Plaintiffs would suffer no hardship in the absence

of an injunction has no basis in fact or law. As the court explained in UMG Recordings, Inc. v.

Blake, 2007 U.S. Dist. LEXIS 46414, at *7-8 (E.D.N.C. June 26, 2007):

As to the consideration of the balance of hardship between Plaintiffs and

Defendant, the fact that Plaintiffs’ recordings can be replicated into infinity, for
free, establishes that a distinct hardship rests with Plaintiffs. Defendant, on the
other hand, faces little, if any, harm. These recordings will still be just as
accessible to Defendant; (s)he will have to pay to download them.

By contrast, Plaintiffs’ proposed injunction seeks nothing more than an order compelling

Defendant to obey the law. The injunction makes clear to Defendant what precisely that

means in the context of peer-to-peer file sharing. There can be no harm from requiring

Defendant to cease committing, or acting in concert with others in committing, copyright

infringement. The injunction Plaintiffs seek does not prevent Defendant from doing

anything he is lawfully allowed to do with legitimately obtained sound recordings.

Public Interest

Fourth, the public interest would clearly be served by the issuance of Plaintiffs’

requested injunction because the public has an interest in the enforcement of federal

statutes. Defendant’ Opposition attempts to distort the language of Plaintiffs’ injunction

sought by arguing that the public interest would be served by allowing Defendant and his

counsel to “speak[] out” on the issues. Plaintiffs, however, are not trying to stifle any

debate Defendant wishes to engage in and the proposed injunction does not seek to limit

his First Amendment right to complain, lobby, or blog about anything he likes.

Plaintiffs’ injunction merely requires Defendant to follow the law and, as the First Circuit

explained in Concrete Machinery Co., 843 F.2d at 612, “it is virtually axiomatic that the

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public interest can only be served by upholding copyright protections.” See Coquico, Inc.

v. Rodriguez-Miranda, 2007 U.S. Dist. LEXIS 76570, *16 (D.P.R. Oct. 11, 2007) (“The

public interest rarely is a genuine issue if the copyright owner has established a likelihood

of success since the public interest is generally served by upholding copyrights and

preventing the misappropriation of the skills, creative energies, and resources which are

invested in the protected work.”).

CONCLUSION

The jury reached its verdict over two and a half months ago, on July 31, 2009. Rule 58

requires judgment to enter promptly upon a jury’s verdict. Too much time has already passed.

Plaintiffs respectfully request that this Court immediately enter Judgment in this case to include a

monetary judgment in accordance with the jury’s verdict and injunctive relief as requested in the

proposed order attached as Exhibit B to Plaintiffs’ Motion.

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Respectfully submitted this 16th day of October, 2009.

SONY BMG MUSIC ENTERTAINMENT;

WARNER BROS. RECORDS INC.;
ATLANTIC RECORDING CORPORATION;
ARISTA RECORDS LLC; and UMG
RECORDINGS, 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 LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
Email: timothy.reynolds@hro.com
eve.burton@hro.com
laurie.rust@hro.com

Matthew J. Oppenheim (pro hac vice)

THE OPPENHEIM GROUP, LLP
7304 River Falls Drive
Potomac, MD 20854
Telephone (301) 299-4986
Facsimile: (866) 766-1678
Email: matt@oppenheimgroup.net

Daniel J. Cloherty
DWYER & COLLORA, LLP
600 Atlantic Avenue - 12th Floor
Boston, MA 02210-2211
Telephone: (617) 371-1000
Facsimile: (617) 371-1037
dcloherty@dwyercollora.com

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent
electronically 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 October 16,
2009.

s/ Eve G. Burton

10

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