Exhibits Re Motion To Exclude Tenenbaum Experts

Case 1:03-cv-11661-NG Document 841-2 Filed 06/05/2009 Page 1 of 55
EXHIBIT A
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
_____________________________________
)
CAPITOL RECORDS, INC., et al., )
)
Plaintiffs, ) Civ. Act. No.
) 03-CV-11661-NG
v. ) (LEAD DOCKET NUMBER)
)
NOOR ALAUJAN, )
)
Defendant. )
_____________________________________ )
_____________________________________
)
SONY BMG MUSIC ENTERTAINMENT, et al., )
)
) 07-CV-11446-NG
v. ) (ORIGINAL DOCKET NUMBER)
)
JOEL TENENBAUM, )
)
Defendant. )
_____________________________________ )
DECLARATION AND EXPERT REPORT OF DR. J.A. POUWELSE
Pursuant to Fed. R. Civ. P. 26(a)(2) and the general rules
governing disclosure of expert testimony, Defendant hereby submits
the following expert report of witness Dr. Johan Pouwelse. This
report describes the testimony which will be provided by Dr.
Pouwelse on behalf of Defendant Joel Tenenbaum.
I. Statement of Expert Opinion

I, Dr. J.A. Pouwelse, will provide expert testimony
regarding peer-to-peer file-sharing networks, the procedures
required to be adopted to accurately identify users and activity
on a file-sharing network, the Plaintiffs’ failure to adopt such
procedures, and the inaccuracies and flawed assertions in the
expert testimony submitted by Dr. Doug Jacobsen. Furthermore, I
will also provide testimony on alternatives to file-sharing
networks to obtain digital music, the cost of obtaining such
music and financial impact of downloading through peer-to-peer
file-sharing networks.
I will testify to the following:
i. the technical characteristics of peer-to-peer file-
sharing networks and their relevance in determining
the identity of users on the file-sharing network,
specifically in refuting factual assertions made by
expert witness Doug Jacobsen;
ii. the structure of Internet IP addresses and the use of
private non-globally unique IP addresses in peer-to-
peer file sharing networks, which were not properly
considered by Plaintiffs’ expert;
iii. the procedures required to be undertaken in order to
establish whether a certain computer is being used to
make copyrighted works available for download via a
peer-to-peer network,
iv. the failure by MediaSentry to adopt several of these
required procedures;
v. the general lack of acceptance of the methods
employed by MediaSentry in the technical and
scientific communities;
vi. the large number of factual errors in the report
provided by expert witness Doug Jacobsen;
vii. the contradictions between Dr. Jacobsen’s report and
previous sworn deposition testimony he has provided;
viii. the previous erroneous claims made by MediaSentry
against multiple institutions;
ix. the conflicts of interest of Dr. Jacobsen which are
relevant in assessing his objectivity in providing
testimony on behalf of Plaintiffs;
x. the lack of examination by Dr. Jacobsen of potential
error rates;
xi. the lack of exploration of alternative explanations
for the data assessed;
xii. the general lack of professionalism inherent in Dr.
Jacobsen’s expert report which makes the report
unacceptable based on relevant technical and
scientific standards.
xiii. the lack of any serious scientific article written
by Dr Jacobsen in the area of peer-to-peer file-

sharing networks or computer science in general in
the past 20 years;
xiv. the alternatives to file-sharing networks for
obtaining digital music through The Internet;
xv. the monetary impact of downloading through peer-to-
peer file-sharing networks.
II. Data Considered
The following data was considered in providing my expert
report:
i. SafeNet Screenshots of Defendant’s computer (Ex. B
to Complaint);
ii. SafeNet Systemlogs from August 10, 2004 (Plaintiffs'
Exhibit List, Ex. 6);
iii. SafeNet Userlogs from August 10, 2004 (Plaintiffs'
iv. SafeNet Download Logs from August 10, 2004
(Plaintiffs' Exhibit List, Ex. 9);
v. SafeNet Trace of August 10, 2004 (Plaintiffs' Exhibit
List, Ex. 10);
vi. Screenshots of KaZaa installation (Plaintiffs'
vii. November 3, 2004 Subpoena to Cox Communications,
Inc., with copy of Court’s Order Granting Immediate
Discovery (Plaintiffs' Exhibit List, Ex. 13);

viii. Letter to Cox High Speed Internet Customer
(Plaintiffs' Exhibit List, Ex. 14);
ix. Response of Cox Communications, Inc. to November 3,
2004 Subpoena (Plaintiffs' Exhibit List, Ex. 15);
x. Prior sworn testimony provided by Dr. Jacobsen,
including testimony in UMG v. Lindor (E.D.N.Y.)
xi. Declaration and Expert Report of Dr. Doug Jacobsen,
dated October 7, 2008;
xii. Scientific research related to peer-to-peer file
sharing networks and identification of users on these
networks;
xiii. Research previously published by me related to file-
sharing networks, accepted procedures for analyzing
activity on such networks, and previous reports and
testimony provided by Dr. Jacobsen;
xiv. Expert report of Dr. Yongdae Kim from Capitol v.
Thomas (D.Minn.).
xv. Defendant reserves the right to add additional
exhibits prior to Dr. Pouwelse’s providing expert
testimony.
III. Exhibits that Will be Used to Summarize or Support Expert
Testimony Provided
See section II above.

IV. My Qualifications, including List of Publications Authored in
the Past Ten Years
I am an Assistant Professor at Delft University of
Technology in the Netherlands, where I lead a research group
investigating peer-to-peer technology. Since January 2008 I have
been the scientific director of a 19 Million Euro project
investigating the next-generation of peer-to-peer technology,
called P2P-Next. As of March 2009 I also am technical director
of a 6.8 Million Euro project investigating the purest form of
peer-to-peer technology – self-organizing systems – in the
“QLectives” project. Both projects are sponsored by research
grants from the European Union under the 7th Framework program.
Due to these grants, my team is at this time the largest peer-
to-peer research team of its kind in the world.
My list of publications is as follows:
i. J. Pouwelse, P. Garbacki, J. Wang, A. Bakker, J.Yang,
A.Iosup, D.Epema, M.Reinders, M. van Steen, H.Sips,
"Tribler: A Social-Based Peer-to-Peer System", 5th
International Workshop on Peer-to-Peer Systems
(IPTPS'06), Feb 2006.
ii. J.A. Pouwelse, P. Garbacki, D.H.J. Epema, H.J. Sips,
"The Bittorrent P2P File-sharing System: Measurements
and Analysis", 4th International Workshop on Peer-to-
Peer Systems (IPTPS'05), Feb 2005.

iii. J.A. Pouwelse, M. van Slobbe, J. Wang, H.J. Sips,
"P2P-based PVR Recommendation using Friends, Taste
Buddies and Superpeers", Beyond Personalization 2005,
Workshop on the Next Stage of Recommender Systems
Research, San Diego, USA, Jan 2005.
iv. J.R. Taal, J.A. Pouwelse, R.L. Lagendijk, "Scalable
Multiple Description Coding for Video Distribution in
P2P networks", 24th Picture Coding Symposium,
December 2004, San Francisco, USA.
v. J.A. Pouwelse, J.R. Taal, R.L. Lagendijk, D.H.J.
Epema, and H.J. Sips, "Real-time Video Delivery using
Peer-to-Peer Bartering Networks and Multiple
Description Coding", IEEE Int'l Conference on
Systems, Man and Cybernetics, October 2004.
vi. J.A. Pouwelse, P. Garbacki, D.H.J. Epema, H.J. Sips,
"A Measurement Study of the BitTorrent Peer-to-Peer
File-Sharing System", technical report PDS-2004-003,
April 2004.
vii. J.A. Pouwelse, "Open Information Pools", Usenix
Conference, San Diego, 1999.
viii. J.A. Pouwelse, K. Langendoen, H. Sips, "Application-
directed voltage scaling", IEEE Transactions on Very
Large Scale integration (TVLSI), Sep 2002 (invited
paper).
ix. J.A. Pouwelse, K. Langendoen, H. Sips, "Voltage
scaling on a low-power microprocessor", Mobile
Computing Conference (MOBICOM), Jul 2001.
x. J.A. Pouwelse, K. Langendoen, H. Sips, "Energy
priority scheduling for variable voltage processors",
International Symposium on Low-Power Electronics and
Design (ISLPED), Aug 2001.
xi. J.A. Pouwelse, K. Langendoen, I. Lagendijk H. Sips,
"Power-aware video decoding", Picture Coding
Symposium (PCS), 2001.
xii. J.A. Pouwelse, K. Langendoen, H. Sips, "Voltage
scaling on a low-power microprocessor", MMSA, 2000.
xiii. J.A. Pouwelse, K. Langendoen, H. Sips, "Power
consumption trade-off for wireless audio access",
Mobile Multimedia Conference (MoMuC), Japan, 2000.
xiv. J.A. Pouwelse, K. Langendoen, H. Sips, "Low-power
technology for augmented reality terminals",
International Workshop on Augmented Reality (IWAR),
1998.
xv. J.A. Pouwelse, "Power Management for Portable
Devices", Delft University of Technology, 20 Oct
2003.
V. List of Cases During Past Four Years in Which the Witness
Testified as an Expert At Trial or by Deposition

a. UMG Recordings, Inc. et al v. Lindor (E.D.N.Y.)
b. Brein Foundation v. UPC (The Netherlands)
c. Stokke v. Markplaats (The Netherlands)
VI. Statement of the Compensation to be Paid for the Study and
Testimony in the Case
This study and testimony is provided free of charge.
Reasonable expenses in preparing for and providing testimony in
the case may be refunded by defendant.

EXHIBIT B
EXHIBIT A
JOHN G. PALFREY, JR.

8 Jay Street, Cambridge, MA 02139
617.864.0062 (home); 857.928.0415 (mobile); 617.384.9132 (office)
jpalfrey@post.harvard.edu (e-mail)
http://blogs.law.harvard.edu/palfrey (weblog/homepage)
ACADEMIC EXPERIENCE
Vice Dean for Library and Information Resources, Henry N. Ess Professor of Law, Harvard Law School
Cambridge, MA 2008 – Present: Lead law library and oversee expanded use of IT resources for Harvard
Law School. Teach courses on Internet law and intellectual property. Principal Investigator on the Internet
and Democracy, OpenNet Initiative, and Digital Natives research projects as Faculty Co-Director at the
Berkman Center for Internet & Society.
Clinical Professor of Law, Harvard Law School

Cambridge, MA, 2005 –2008: Teaching courses on Internet law and intellectual property, supervising JD
and LLM independent writing and research, and overseeing cyberlaw clinical teaching activities. Special
Advisor to the Dean of HLS for Information Technologies. Co-chair of the HLS Information Technologies
committee. Taught a Freshman Seminar on the Law of the Internet, Harvard College (Fall, 2005; Fall,
2006). Principal Investigator on Internet filtering (under a $3 million grant from the MacArthur Foundation),
Internet Governance ($2 million in grants from the US Department of State, the Bradley Foundation, and
others), Intellectual Property, New Media, and Computer Security research projects. Member of the Mather
House Senior Common Room at Harvard College.
Visiting Professor of Law and Information, University of St. Gallen (Switzerland)

St. Gallen, Switzerland, 2007 – 2008: Visiting member of the law faculty (part-time).
Executive Director, Berkman Center for Internet & Society, Harvard Law School
Cambridge, MA, 2002 – 2007: Managing the staff, operations, finance and strategy of a leading Internet
research center at HLS. Raised over twenty million dollars in grant and gift funds from foundations such as
MacArthur, Soros, Mellon, Bradley, Revson, Oak, Omidyar, Hewlett, Ford, and others; corporations such as
Google, eBay, IBM, Oracle, Microsoft, Sun, Lenovo, LexisNexis, PayPal, AOL, and others; and individuals.
Lecturer on Law, Harvard Law School

Cambridge, MA, 2003 – 2005: Taught seminar at HLS on the international aspects of Internet law (Fall,
2003 and Fall, 2004). Taught Internet Law Colloquium (with Profs. Fisher, Nesson, and Zittrain, 2004 –
2005) and Digital Democracy (with Prof. Nesson, Fall term 2003 and 2004). Advised independent study,
clinical study, third-year papers for JD students, and LLM papers. Appointed Lecturer on History &
Literature, 2005, in the Faculty of Arts and Sciences, Harvard University.
Faculty, Harvard University Extension School

Cambridge, MA, 2002 – 2005: Taught “Internet and Society: The Technologies and Politics of Control,” an
Internet Law course, with both in-class and distance students during four semesters (Spring, 2002; Spring,
2003; Spring, 2004; Spring, 2005).
Teaching Fellow, Internet Law Courses, Harvard University

Cambridge, MA, 2000 – 2001: Assisted in teaching and curriculum development of courses at Harvard Law
School and Kennedy School of Government.
Editor | Staff, Harvard Environmental Law Review

Cambridge, MA, 1999 – 2000: Edited for a Harvard Law School law review on environmental issues.
BOOKS
_______, with Ronald Deibert, Rafal Rohozinski, and Jonathan Zittrain, eds. ACCESS DENIED: THE PRACTICE AND
POLITICS OF INTERNET FILTERING (MIT Press, 2008).
_______, with Urs Gasser, BORN DIGITAL: CONNECTING WITH A GLOBAL GENERATION OF DIGITAL NATIVES
(Basic Books, 2008)
LAW JOURNAL PUBLICATIONS
________, with Robert Rogoyski, A Move to the Middle: The Enduring Threat of Harmful Speech to the End-to-
End Principle, 21 WASH. U.J.L. & POL’Y 31 (2006).
________, with Urs Gasser, Catch-as-Catch-Can: A Case Note on Grokster, SWISS REVIEW OF BUSINESS AND
FINANCIAL MARKET LAW 78 (2006), Vol. 2.
________, The End of the Experiment: How ICANN’s Foray into Global Internet Democracy Failed, 17 HARV.
J.L. TECH. 410 (2004).
________, with David R. Johnson & Susan P. Crawford, The Accountable Net: Peer Production of Internet
Governance, 9 VA. J. L. & TECH. 9 (2004).
CHAPTERS IN BOOKS
________, Reluctant Gatekeepers: Corporate Ethics on a Filtered Internet, book chapter in GLOBAL INTERNET
TECHNOLOGY REPORT, 2006-2007 (World Economic Forum/Macmillan, 2007).
________, Local Nets: Filtering and the Internet Governance Problem, book chapter in THE GLOBAL FLOW OF
INFORMATION, Jack Balkin et al., eds. (forthcoming).
________, Global Innovation and Licensing Opportunities on the Internet, book chapter in LICENSING BEST
PRACTICES, (New York: John Wiley & Sons, 2006).
________, Stemming the International Tide of Spam, book chapter in TRENDS IN TELECOMMUNICATIONS REFORM
(International Telecommunication Union, 2006).
________, with Lawrence Lessig and Mary Rundle, Net Dialogue Perspectives on International Net
Governance, book chapter in WORLD SUMMIT ON THE INFORMATION SOCIETY (WSIS) JOURNAL (2005).
________, Holding Out for an Interoperable DRM Standard, book chapter in DIGITAL RIGHTS MANAGEMENT: THE
END OF COLLECTING SOCIETIES?, (Berne: Staempfli, 2005).
OTHER RECENT PUBLICATIONS
________, with Urs Gasser, Breaking Down Digital Barriers: How and When Interoperability Leads to
Innovation, plus three companion case studies on DRM, Digital Identity, and Web Services, (Berkman Center
Publications Series, 2007).
________, Case Commentary: “We Googled You,” HARVARD BUSINESS REVIEW (June, 2007).
________, with Derek Bambauer and David Abrams, A Comparative Analysis of Spam Laws: The Quest for a
Model Law (International Telecommunication Union, 2005).
________, with David R. Johnson & Susan P. Crawford, Trusting the Net: Peer Production of Internet
Governance, __ INFORMATION TECHNOLOGIES AND INTERNATIONAL DEVELOPMENT __ (Cambridge: MIT Press,
2005).
________, with Ronald Deibert, Jonathan Zittrain, and Rafal Rohozinski, a series of reports on Internet Filtering
in countries including Saudi Arabia, China, Iran, Vietnam, the UAE, Yemen, Singapore, and Bahrain, published
through the OpenNet Initiative, at http://www.opennet.net/ (2004 – present).
________, with William W. Fisher, et al., Copyright and Digital Media in a Post-Napster World, Berkman Center
Publications Series, jointly with Gartner|G2 (2003 and 2005 editions).
________, with William W. Fisher, et al., Content & Control: Assessing the Impact of Policy Choices on Potential
Online Business Models in the Music and Film Industries, Berkman Center Publications Series, (2005).
________, with William W. Fisher, et al., iTunes: How Copyright, Contract, and Technology Shape the Business
of Digital Media . A Case Study, Berkman Center Publications Series, (2004).
________, ABA Report on Dispute Resolution in E-Commerce, DISPUTE RESOLUTION MAGAZINE, Winter 2003, at
38.
________, OP-EDS AND COLUMNS: In major daily, weekly and monthly publications, such as “The Digital Copyright
Crisis” (Boston Globe, September 7, 2004), “Electronic Voting and Copyright” (C|Net, October 5, 2004), “Engaging
Young Bostonians in Citizenship” (Boston Globe, July 5, 2004), “Somerville Stumps in Cyberspace” (Boston
Globe, September 2, 2005) “Censorship, Inc.?” (Newsweek, February 27, 2006). “Deploying the Wisdom of the
Crowds Against Badware” (with Prof. Jonathan Zittrain, in CNET, July 29, 2006); “The Law School Curriculum:
What is Technology’s Role?” (National Law Journal, November 13, 2006).
OTHER PROFESSIONAL EXPERIENCE
Associate, Ropes & Gray LLP

Boston, MA, 2001 – 2002: Attorney working on intellectual property, Internet law, private equity
investments, and corporate matters. Admitted to the Massachusetts & New York Bars.
Co-Founder and Vice-President of Operations, Analine Technologies

Boston, MA, 1999 – 2001: Responsible for operations, business development and finance for start-up.
Raised venture capital and angel financing. Company acquired by competitor.
Special Assistant to John DeVillars, U.S. EPA-New England Administrator

Boston, MA, 1994 – 1996, 1999 – 2000: Appointed by the White House to serve as political aide to New
England’s senior environmental official, serving as speechwriter, press officer, editor and advisor.
Campaign Management, Staff, and Internships

Washington, DC and Boston, MA, 1987 – 1998: Directed all aspects of a state-wide campaign for Attorney
General of Massachusetts (for state Sen. Lois Pines), including fund-raising, field organization, volunteer
coordination, and advance. Campaign to Elect Christopher Lydon, 1993; Sierra Club National Legislative
Office, Summer 1992; Campaign Director, National Environmental Law Center, Summer 1991; Field
Manager, U.S. Public Interest Research Group, Summer 1990.
SELECTED BOARDS AND OTHER PROFESSIONAL ACTIVITIES
• Member, Board of Directors, Mass2020 Foundation, 2005 – present.

• Founder and Chairman, Board of Directors, Top Ten Media Holdings, LLC, 2005 – present.
• Venture Executive, Highland Capital Partners, 2007 – present.
• Member, Board of Directors, My Virtual Model, Inc., 2006 – 2008.
• Member, Board of Directors, Newsilike Media Group, Inc., 2005 – present.
• Member, Board of Advisors, BlueWave Strategies, 2002 – present.
• Member, Board of Directors, Charles River Watershed Association, 2001 – 2007.
• Co-Founder and General Partner, RSS Investors, L.P., 2005 – 2007.
EDUCATION
Harvard Law School: J.D. cum laude, June 2001
University of Cambridge: M.Phil. in Historical Studies, July 1997
Harvard College: A.B. magna cum laude in History and Literature of America, June 1994
Phillips Exeter Academy: High Honors; Lindsey Crawford Memorial Scholarship to Harvard College, 1990
AWARDS AND HONORS
• Certificate of Distinction in Teaching, Awarded by the Bok Center at Harvard University, 2007
• Dean’s Commendation for Excellence in Teaching, Harvard Extension School, 2005
• Super Lawyers’ Rising Stars, 2005, 2006, 2007 (listed in Boston Magazine as a “rising star” in the field of law)
• Fellow, British-American Project, 2004 – present
• IDEAS Boston, 2004 (chosen by Boston Globe as one of 32 “leading thinkers” from the New England region)
• Rotary Foundation Ambassadorial Scholar to the University of Cambridge, 1996-1997
• U.S. EPA Gold Medal (highest national award), 1996
• U.S. EPA Bronze Medal (highest regional award), 1996
• U.S. Government Outstanding Scholar Program, 1994-1996
• Commendation from Governor Lincoln Almond of Rhode Island for Excellence in Government Service, 1996
• Honors thesis on anti-slavery and the transcendentalists, Harvard College, summa cum laude, 1994
• Ford Foundation Research Grant for the study of American history, 1993
• John Harvard Scholar, 1993; Harvard College Scholar, 1991, 1992, 1994
• Dean’s List, Harvard College, 1990 - 1994.
• Everett Public Service Grant for research, 1992
ACTIVITIES
• Harvard Varsity Squash: Co-captain of an undefeated National Championship team. Lettered on four
National Championship teams, 1990 - 1994. John M. Barnaby Award for Improvement and Dedication, 1992,
1994.
• Boston Marathon: Finisher, 1992 & 1993.
• Harvard Glee Club: First tenor and section leader, 1990-1994.
References available upon request.

EXHIBIT C
EXHIBIT D
From: Timothy M Reynolds

Sent: Friday, April 24, 2009 8:29 AM
To: nesson@law.harvard.edu
Cc: 'Matthew H. Feinberg'; 'Cloherty, Dan'
Subject: RE: Tenenbaum, J. (D. Mass)
Charlie: Please advise as to how long you will need to supplement Defendant's disclosures. We
need to get something on file with the court regarding these deadlines as soon as possible. Tim
--------------------------------------------------------------------------------
From: Timothy M Reynolds
Sent: Wednesday, April 22, 2009 2:10 PM
To: 'nesson@law.harvard.edu'
Cc: Matthew H. Feinberg; 'Cloherty, Dan'
Subject: RE: Tenenbaum, J. (D. Mass)
Charlie: How long will you need to supplement? Tim
--------------------------------------------------------------------------------
From: Charles Nesson [mailto:nesson@gmail.com]
Sent: Wednesday, April 22, 2009 1:25 PM
To: Timothy M Reynolds
Cc: Matthew H. Feinberg
Subject: Re: Tenenbaum, J. (D. Mass)
tim, we will go back to each of our experts with your objections and supplement the disclosures.
On Mon, Apr 20, 2009 at 3:20 PM, Timothy M Reynolds <Timothy.Reynolds@hro.com> wrote:
Hello Charlie:
I am following up on our conference regarding Defendant's witness disclosures under Rule

26(a)(2). While Plaintiffs have serious questions concerning the admissibility of any testimony
from these witnesses under Rules 403 and 702, as a threshold matter, the disclosures provided by
Defendant do not satisfy Rule 26(a)(2)(B). Among other things, they fail to provide a statement
of the "opinions to be expressed and the basis and reasons therefor” as well as a listing of “the
data or other information considered by the witness in forming them.” See Fed. R. Civ. P.
26(a)(2)(B).
The disclosure for Dr. J.A. Pouwelse fails to contain the information required under Rule
26(a)(2)(B)(i) and (ii). As we discussed, Dr. Pouwelse's report lists topics, but does not provide
any actual opinions or the basis for such opinions. Also, in section II of Dr. Pouwelse's report,
items xii and xiii fail to identify the actual data considered.
The disclosure for John G. Palfrey fails to contain the information required under Rule
26(a)(2)(B)(i), (ii), (iv), and (v). Like Dr. Pouwelse, Mr. Palfrey's report lists topics, but does
not provide any actual opinions or the basis for such opinions. Mr. Palfrey's report also fails to
identify the data considered, contains no list of publications, and does not specify whether Mr.
Palfrey has ever testified as an expert at trial or deposition on any topic.
The disclosure for John Perry Barlow fails to contain the information required under Rule
26(a)(2)(B)(i), (ii), and (iv). Mr. Barlow's report does not provide any basis for his opinions,
does not list the data considered, and does not list any qualifications or publications.
As we discussed, please let me know whether Defendant will agree to supplement these
disclosures. In addition, because Plaintiffs cannot complete their expert discovery or determine
whether rebuttal experts may be necessary until Defendant provides complete disclosures, please
let me know whether Defendant will agree to extending the deadline for Plaintiffs' rebuttal
disclosures and the deadline for completion of discovery.
If you have any questions, please let me know. Thanks very much.
Tim
Timothy M. Reynolds
Holme Roberts & Owen LLP
1801 13th Street, Suite 300
Boulder, Colorado 80302
303.417.8510 (Direct)
303.866.0200 (Fax)
timothy.reynolds@hro.com
2
EXHIBIT E
From: Raymond Bilderbeck

Date: Sun, Mar 29,2009 at 8:08 PM
To: nesson at law.harvard.edu
Cc: lessig at pobox. com
If I can weigh in on this, I would have to agree that if the centerpiece of our case at trial is going
to be this "noncommercial fair use" argument to which you seem committed, it would be a big
mistake to call Professor Lessig to the stand. From the sliver of his work that I have read, I gather
that even if he agreed to say what we would like him to say (which seems unlikely), opposing
counsel would have a field day on cross-examination, given his extensive writings on these issues.
When writing the "draft" disclosures in light of your comments on my initial draft, I found myself
writing more from your perspective on the case than based upon anything I had gleaned from
Professor Lessig's work. I just assumed that you knew something about Professor Lessig that I did
not. Apparently, this is not the case.
All of this looks very bad from my perspective. I think that introducing our experts at this late
stage to the very novel argument that we intend to raise at trial - an argument which has no real
basis in case law or moderate academic scholarship - is a blunder that could have very serious
consequences. At this point, I have no idea what our disclosures will look like. And they have to
http://blogs.law .harvard.edu/nesson/ 3/30/2009

be filed TOMORROW. Bad, bad, bad.
We should have been working on this for weeks rather than days.
R. >it is practically impossible to frame and present a nullification case. despite

>=== message truncated ===
http://blogs.law .harvard.edu/nesson/ 3/30/2009

EXHIBIT F
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
_____________________________________
)
CAPITOL RECORDS, INC., et al., )
)
) 03-CV-11661-NG
v. ) (LEAD DOCKET NUMBER)
)
NOOR ALAUJAN, )
)
Defendant. )
_____________________________________ )
_____________________________________
)
SONY BMG MUSIC ENTERTAINMENT, et al., )
)
) 07-CV-11446-NG
v. ) (ORIGINAL DOCKET NUMBER)
)
JOEL TENENBAUM, )
)
Defendant. )
_____________________________________ )
AMENDED DECLARATION OF JOHN PERRY BARLOW
1. I, John Perry Barlow, am the vice-chairman of the
board of directors of the Electronic Freedom Foundation, an
organization I co-founded in 1990. Since May of 1998, I have
been a Fellow at the Berkman Center for Internet and Society. I
am a poet and musician, and between 1971 and 1995, I was a
lyricist for the Grateful Dead, a well renowned American music
group. I previously served on the masthead of Wired magazine. In
the past I have contributed articles to Wired, the New York

Times, and Communications of the Association for Computing
Machinery. I speak, consult, and write for a living. These
positions and experiences qualify me to speak about the fairness
of peer-to-peer file sharing in the context of the recording
industry and the technological environment in which such actions
occur.
2. Given my personal experiences in the music industry,
and my position as a public intellectual in discourse on
copyright, music, and technology, I am able to testify about the
historical context of the record industry’s anti-file sharing
campaign, its larger merits and shortcomings, and the social
implications of litigation such as that before this court. I am,
in particular, aware of how the economics of “file-sharing” can
work to the great benefit of musicians and creators. The
Grateful Dead allowed our fans to tape our concerts, essentially
giving our music away for “free.” In doing so, we essentially
invented viral marketing, solving an advertising problem that
our record companies were never to address and becoming
enormously successful in the process.
3. I will testify that the Internet, and peer-to-peer
technology in particular, allow us to do that which we, as
humans, fundamentally need to do: share art. I will explain how
digital technology has finally freed us from the physical medium
of CDs and other increasingly antiquated mediums, how this

conversion challenges conventional application of the
institution of copyright, and why this natural evolution should
be welcomed.
4. I will testify that the music industry will never be
endangered because, for reasons I will not presume to know with
certainty, we as humans absolutely require music, and because in
the music business as I know it, familiarity, not scarcity,
creates value. I will explain why this means that the industry
surrounding music will never cease to exist in some form. I will
explain that the online world presents us with a “gift economy,”
where no moral blameworthiness attaches to non-commercial
sharing, and I will explain why this does not threaten the music
industry.
5. I will testify that the recording industry is
complicit in allowing itself to hold on to antiquated business
models rather than adjust to the changing landscape around them.
I will explain why the recording industry must evolve and why it
is improper for the industry to attempt to institutionalize
stagnation through their litigation and legislation efforts.
6. I will present no exhibits at trial.
7. I have not presented expert testimony, neither by
deposition nor at trial, in the past four years.
8. I am receiving no compensation for my testimony in
this case.
9. I have no publications that I must list.
10. I declare under penalty of perjury under the laws of
the United States of America that the foregoing is true and
correct.
JOHN PERRY BARLOW
Dated: May 10, 2009

EXHIBIT G

Exhibits Re Motion To Exclude Tenenbaum Experts

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Exhibits Re Motion To Exclude Tenenbaum Experts

Hochgeladen von

Copyright:

Verfügbare Formate

Case 1:03-cv-11661-NG Document 841-2 Filed 06/05/2009 Page 1 of 55

UNITED STATES DISTRICT COURT

DECLARATION AND EXPERT REPORT OF DR. J.A. POUWELSE

Pursuant to Fed. R. Civ. P. 26(a)(2) and the general rules

governing disclosure of expert testimony, Defendant hereby submits

the following expert report of witness Dr. Johan Pouwelse. This

report describes the testimony which will be provided by Dr.

Pouwelse on behalf of Defendant Joel Tenenbaum.

I. Statement of Expert Opinion

I, Dr. J.A. Pouwelse, will provide expert testimony

regarding peer-to-peer file-sharing networks, the procedures

required to be adopted to accurately identify users and activity

on a file-sharing network, the Plaintiffs’ failure to adopt such

procedures, and the inaccuracies and flawed assertions in the

expert testimony submitted by Dr. Doug Jacobsen. Furthermore, I

will also provide testimony on alternatives to file-sharing

networks to obtain digital music, the cost of obtaining such

music and financial impact of downloading through peer-to-peer

I will testify to the following:

i. the technical characteristics of peer-to-peer file-

sharing networks and their relevance in determining

the identity of users on the file-sharing network,

specifically in refuting factual assertions made by

expert witness Doug Jacobsen;

ii. the structure of Internet IP addresses and the use of

private non-globally unique IP addresses in peer-to-

peer file sharing networks, which were not properly

considered by Plaintiffs’ expert;

iii. the procedures required to be undertaken in order to

establish whether a certain computer is being used to

make copyrighted works available for download via a

iv. the failure by MediaSentry to adopt several of these

v. the general lack of acceptance of the methods

employed by MediaSentry in the technical and

vi. the large number of factual errors in the report

provided by expert witness Doug Jacobsen;

vii. the contradictions between Dr. Jacobsen’s report and

previous sworn deposition testimony he has provided;

viii. the previous erroneous claims made by MediaSentry

against multiple institutions;

ix. the conflicts of interest of Dr. Jacobsen which are

relevant in assessing his objectivity in providing

testimony on behalf of Plaintiffs;

x. the lack of examination by Dr. Jacobsen of potential

xi. the lack of exploration of alternative explanations

for the data assessed;

xii. the general lack of professionalism inherent in Dr.

Jacobsen’s expert report which makes the report

unacceptable based on relevant technical and

xiii. the lack of any serious scientific article written

by Dr Jacobsen in the area of peer-to-peer file-

sharing networks or computer science in general in

the past 20 years;

xiv. the alternatives to file-sharing networks for

obtaining digital music through The Internet;

xv. the monetary impact of downloading through peer-to-

peer file-sharing networks.

II. Data Considered

The following data was considered in providing my expert

i. SafeNet Screenshots of Defendant’s computer (Ex. B

ii. SafeNet Systemlogs from August 10, 2004 (Plaintiffs'

Exhibit List, Ex. 6);

iii. SafeNet Userlogs from August 10, 2004 (Plaintiffs'