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)