December 14



A recent case out of the Southern District of New York highlights a glaring example of how difficult it can be to uncover the truth in a copyright infringement litigation. 
The plaintiff in this particular case accused the defendants of copyright infringement of a song and won at trial. Defendants accused plaintiff of fabricating the evidence against them. 
However, defendants lacked sufficient evidence to prove this at trial. The trial was bifurcated, meaning that a trial on infringement was completed before discovery and a trial on damages was conducted. 
Plaintiff won the trial on infringement, but new evidence of falsified evidence and testimony, discovered by defendantsafter the trial, caused the court to reverse this finding.
A question at the trial on infringement presented a new lead and proved the eventual evidence that led to the undoing of the plaintiff’s case. 
During questioning of Eduard Bello Pou (“Bello”) by platinff’s counsel, at trial, the name of DJ Japones came up. This name was unfamiliar to Bello. 
After the trial, Bello located DJ Japones, showed him a copy of the cassette tape at issue at the trial on infringement and played a recording of the songs on the cassette tape. Japones recognized the music at issue in the litigation as music that he had created in 2009 and other tracks as created by musicians of “The New Collection” in 2008 and 2009.  
In addition, Oscar Marine Santos Cabrera (“Santos”) confirmed the testimony of DJ Japones that several of the songs on the tape were created by members of The New Collection in 2008 and 2009, including one created by Santos, himself. Also, DJ Japones recognized the man depicted on the cover as Jhoan Gabriel Gonzalez Gomez (“Jhoan”). He knew that Jhoan was now only 25 years old, which means that Jhoan would have been only nine years old in 1998, when the author allegedly made the cassette tape. 
This evidence, if true, undermined the testimony of plaintiff’s witnesses at trial.
Jhoan had provided an affidavit in this case that said that he was 17 at the time the photograph was taken in 1998. 
Wilson Rood, a private investigator for Sony, tracked down Jhoan in October 2014. Jhoan recanted his previous affidavit, confirmed his birth date, provided a copy of identification verifying January 15, 1989 as his birth date and asserted that he was the person shown in the photo on the cover. 
Jhoan now alleged that Ramon Arias Vasquez took the photograph of him in 2011, not 1998. Furthermore, Jhoan stated that Roman Arias Vasquez, his brother Carlos Arias Vazquez (Roman Arias’ brother) and Nelson Estevez (J&N Music) offered to pay him, when the case against Sony was won, if he agreed to claim that he had formed part of “Joan el Rabioso Y Collection,” even though that was not true. 
The testimony of Jhoan, if believed by the court, undermines the plaintiff’s case and shows an effort to deceive the Copyright Office and the court about the true date that the cassette was made.
Perhaps, Sony’s attorneys might have uncovered the falsity of Jhoan’s testimony before trial, during discovery. However, getting discovery from witnesses in foreign countries can be difficult, and Sony had no reason to suspect that the image was not of a 17 year old dancer until DJ Japones was found.
Sony discovered additional evidence of the non-existence of software in 1997 that undermines the truthfulness of the testimony given at trial of another witness, Juan Pablo West Smith (“Smith”). Smith testified on behalf of the plaintiff at the original trial and asserted that musical elements were added to vocal tracks in mid-1997 using “Frooty Loops,” a brand of computer software for mixing music. 
Smith’s testimony corroborated the date of creation of the cassette tape put forward by Roman Arias Vasquez. However, Sony tracked down Frank van Biesen, cofounder of the company that produced and distributed “Frooty Loops,” after the trial. 
According to Frank van Biesen, “Frooty Loops” did not even exist until December 18, 1997 and was not available for download in 1997, at all. 
This new evidence raised doubts about the truthfulness of Smith’s testimony.
Forensics can be very expensive, which is seldom a consideration in a television program, such as CSI:Miami. Sometimes, forensic science or forensic accounting is the only way to prove that evidence has been manufactured. 
These cost tens of thousands of dollars to complete. Scientific and forensic testing and analysis of typefaces, inks, paper/ink combinations, materials, technologies and software can be necessary to prove that evidence presented by the other side could not have been produced within the range of dates asserted by witnesses. 
All leads must be followed, because you are looking for some mistake made by the other side that can be used to impeach false testimony and fraudulently manufactured evidence. 
You don’t know which mistake might disprove the other party’s case until you have completed the discovery, conducted the test or tracked down the witness. 
Statements by witnesses must be challenged, even if plausible. 
Documents, email and databases must be reviewed to find any impeaching evidence. 
In this digital age, computer forensic experts may be required to investigate deleted data, damaged drives, data logs, cellular phones, electronic storage devices, and document metadata. 
If data was electronically created and stored, then it might be possible to recover it, even if someone tried to delete it. At least, you might show that a large amount of data was deleted in violation of requests by you and rules against deletion of discoverable information. 
Litigation costs the client due to the time and effort needed for lawyers to piece together the truth and to hire the right experts to disprove false testimony. 
To overlook a critical document or omit a critical test or fail to follow-up a critical lead could mean the difference between success and failure.
The cost of finding out the truth can be more than most can afford, but the cost of letting false testimony go unchallenged can lead to millions of dollars in damages and injunctions. 
Even lawyers and judges can make the mistake of believing witnesses that give false testimony, convincingly, discrediting other truthful testimony that is presented haltingly or that is nuanced and less convincing. 
Our courts and our system of justice are broken. The “truth and nothing but the truth” have become so scarce that lawyers are surprised when they encounter it. 
If false and misleading evidence were not so common and the stakes were not so high, U.S. copyright litigation would not cost as much as it does.


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