Saturday, May 16, 2009

Tenenbaum: precedent? We don't need no stinkin' precedent.

In support of his last-minute effort to assert a fair use defense to his admitted use of peer-to-peer software to download music, Joel Tenenbaum has made the stunning argument that the volumes of case law explicating fair use are simply irrelevant:
It makes no difference what factual fair‐use findings various courts have made in other equitable and jury waived contexts. Each case is necessarily be [sic] considered and decided on its own facts based on all the evidence in the particular case.
Tenenbaum's (proposed) brief was filed in response to the record labels' opposition to his effort to amend his answer to add a fair use defense -- a defense that even Tenenbaum's own proposed experts have said is a loser, and that one member of his legal team said has "no real basis in case law."

And Tenenbaum's bald assertion -- with no citation to authority -- that previous courts' fair use decisions "make[] no difference" is simply wrong. Looking to previous fair use decisions is precisely how courts determine whether the fair use defense applies in the case before them. Yes, the case law says that each case must be adjudicated on its own particular facts, but the way that a court determines whether those facts support a fair use defense is by reference to other fair use cases, especially ones where the relevant facts are similar. The labels have demonstrated that every case that has adjudicated fair use in the p2p context has rejected the defense. Tellingly, Tenenbaum's brief doesn't even deign to address those cases.

Moreoever, I have grave doubts whether the court will permit Tenenbaum to put his fair use defense before a jury. Fair use is virtually always decided by the judge, usually on summary judgment motion. I am aware of only one case in recent history where a jury determined the applicability of a fair use defense. A recent empirical study of fair use opinions by Professor Barton Beebe does not refer to a single jury trial. (Beebe was on the infamous email chain where Tenenbaum's experts told Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, that the fair use defense won't fly, though he appears not to have actively participated in the fun.)

Tenenbaum's preview of the fair use defense he plans to offer is fascinating: a blatant call for jury nullifcation:
Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors, just as they are articulated in the statute, with the jury to decide their meaning as they apply to the facts of his particular case. Defendant Tenenbaum expects and plans as well to offer the jury evidence relating other factors that bear on the jury’s assessment of whether the defendant's actions in their context were unfair. Such will include the copyright holder’s knowledge of and assumption of risk when it published the copyrighted work that the work would be ripped and shared on p2p networks; the copyright holder's delay in providing alternatives to p2p downloading, thus creating an environment in which even the RIAA concluded that suits against p2p downloader’s would be unfair until such alternatives existed; the defendant's history of buying music and of copying music from one format to another; the availability and the defendant’s knowledge and understanding of the availability at the time of his alleged actions of alternatives to p2p downloading; the defendant’s actual use of the copyrighted works; and the messages of the allegedly downloaded songs and artists.
I'm not aware of any court, in any jurisdiction, that has accepted any of these factors as supporting a fair use defense. (Presumably if Tenenbaum had any cases to support his arguments, he would have cited them. He cited none.) Copyright owners do not "assum[e] risk" that their works will be copied. Copyright owners were under no obligation to offer their works on the timetable that Tenenbaum would have preferred.

And does Tenenbaum really plan to put on evidence of "the messages of the allegedly downloaded songs and artists"? I'm sure that would make for some fascinating discussion. What it has to do with the labels' copyright claims is beyond me. (Come to think of it, one of the songs Tenenbaum allegedly downloaded, Sublime's "April 29, 1992 (Miami)," -- which mocks conjured-up rationalizations for law-breaking -- could provide some pretty powerful "evidence" against him. Be careful what you ask for...)

(h/t Recording Industry vs. The People)


  1. Just a simple question. In your opinion is the "ultimate determination" of whether or not a particular use is "fair" a question of law or a question of fact? Because so many issues are considered as being questions of mixed law and fact, this is why I have become my own lexicographer and adopted the phrase "ultimate determination", it being clear that the answer implicates the standard of review on appeal - "de novo" or "clearly erroneous".

    Nesson is obviously angling for the latter.

    Merely as an aside, given Mr. Nesson's penchant for viewing the FRCP as mere "guidance", I am hardly surprised that the import of precedent is being cast aside as irrelevant. Even assuming arguendo, that the filing of an amendment to the Answer(s) at this late date is not precluded, I do have to question the wisdom of Mr. Nesson's argument in his motion that judicial precedent is to be thrown out the window. In my view he lacks familiarity with the simple rule "the less said the better".

    Mike Slonecker

  2. Here's what the Supreme Court said in Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985):

    "Fair use is a mixed question of law and fact. Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1495, n. 8 (CA11 1984). Where the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court 'need not remand for further factfinding . . . [but] may conclude as a matter of law that [the challenged use] do[es] not qualify as a fair use of the copyrighted work.'"

    From what I know, a jury deciding fair use is, at best, an extremely rare occurrence. It's been a while since I've done real research on this topic, but a few years ago I read every single fair use opinion (appellate and district court) since 1984 in the 2d and 9th Circuits, and I don't recall any of them involving a jury verdict (e.g., an order on a motion for new trial, or an appeal following a jury verdict).

    I am genuinely curious whether others know of examples of fair use being decided by a jury, other than the Mercury News case I linked to in the main post.

  3. Ben,

    Yet another example at the appellate level is LOS ANGELES NEWS SERVICE, ROBERT TUR v. FRANK TULLO; CHARLES BICKERT; AUDIO VIDEO REPORTING SERVICES (9th Circuit, 1992). Unfortunately, I was unsuccessful in securing a copy of the District Court opinion for this case, and the 9th Circuit panel's opinion made only generic reference to "court", it not being clear if the predicate facts were determined by the judge or a jury (if, in fact, there was even a jury). While the 9th Circuit panel did characterize the question of fair use as one of "fact and law", it did appear to hold that whether or not the defense of fair use has been established is ultimately a question of law subject to de novo review.

    My "take way" from this and other cases I have read over the many years I have practiced (I am perhaps in the distinct minority of setting time aside to regularly read advance sheets) is that no matter who serves as the trier of fact, be it a judge or a jury, the application of those facts to determine if fair use actually pertains in one of law entrusted to the presiding judge.

    Hence, even if by some miracle Mr. Nesson is able to get his amendment entered and the case presented to a jury, it is the presiding judge who has the final say in the matter.

    I can only begin to imagine the "battle royale" that would ensue concerning jury instructions if a jury is empaneled.


  4. Mike --

    I agree with your "take away" (with the caveat that in the Mercury News case, fair use was determined by a jury). But one correction: the 9th Cir.'s opinion in LANS v. Tullo followed a bench trial, not a jury trial: "After a bench trial, the district court entered judgment for LANS on the copyright infringement claims and awarded statutory damages of $ 10,000 for each infringement, a total of $ 20,000."

    It is true that the 9th Cir. has promulgated model jury instructions on fair use, which may suggest that a jury trial may be appropriate in some circumstances. The instructions basically just re-state Section 107:

    (17 U.S.C. § 107)

    One who is not the owner of the copyright may use the copyrighted work in a reasonable way under the circumstances without the consent of the copyright owner if it would advance the public interest. Such use of a copyrighted work is called a fair use. The owner of a copyright cannot prevent others from making a fair use of the owner’s copyrighted work.

    Defendant contends that defendant made fair use of the copyrighted work for the purpose of [criticism] [comment] [news reporting] [teaching] [scholarship] [research] [other purpose alleged]. The defendant has the burden of proving this defense by a preponderance of the evidence.

    In determining whether the use made of the work was fair, you should consider the following factors:

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work;

    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

    4. the effect of the use upon the potential market for or value of the copyrighted work; and

    [5.] [insert any other factor that bears on the issue of fair use].

    If you find that the defendant proved by a preponderance of the evidence that the defendant made a fair use of the plaintiff’s work, your verdict should be for the defendant.

  5. Ben,

    Thank you for the info on the case I cited. I suspected as much, but could not answer the question definitively based solely on the 9th Circuit opinion.

    BTW, when referring to a "battle royale" perhaps I should have elaborated a bit more and more properly characterized it as a "battle 'of the brackets' royale", for clearly the open-ended language of 107 admits to the consideration of factors. I can quite easily anticipate what Mr. Nesson would try and have the court insert, but out of respect for him I will refrain from elaborating further.


  6. Charlie may not be very interested in precedent. (Rather odd, coming from Harvard Law School, or indeed any accredited law school, frankly).

    However, the irony is that he may be about to set one, and given the way he is going about it, it could be a real stinker.

    Good luck, Joel. You're gonna need it.

  7. I'm going to have to lay in a supply of popcorn and sodas for this trial, because it's gonna be EPIC.


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