Humor aside, I don't see how Camara gets in any evidence or argument relating to fair use. As I've previously explained:
Fair use is an affirmative defense to a claim of copyright infringement. See, e.g., Harper & Row v. Nation Enters. Like all affirmative defenses, it must be pled in the answer, or else it is waived. See FRCP 8(c). Here's Thomas' answer. See any reference to fair use? I would be shocked if the court now permitted her to amend her answer (three years on), thus allowing her to argue fair use (putting aside the issue whether it is even an appropriate issue for a jury). Put simply, fair use (which has been rejected on the merits in the p2p context by three courts of appeals [panels] in BMG v. Gonzalez, Napster, and Aimster) is waived here.(And don't just take my word for it.) [UPDATE: Plaintiffs have moved in limine to preclude assertion of the fair use defense for the reasons I just described.]
Camara also says he will assert defenses as a "service provider" under Section 512 of the DMCA and under the Audio Home Recording Act. That sounds farfetched at best, but I'll be interested to read the motions for judgment as a matter of law that Camara says he will file on those issues.
And Camara has also filed a separate "Motion to Suppress" evidence collected by MediaSentry. (Is there even such thing as a "motion to suppress" in a civil case? Why isn't this just a motion in limine?) Camara argues that MediaSentry, which joins the Kazaa network and views what's in the share folders that users expose to the world, in so doing violates the Minnesota Private Detectives Act, the Pen Register and Trap and Trace Devices Act, as amended by the USA Patriot Act, and the Electronic Communications Privacy Act of 1986. Let me translate Camara's argument into plain English:
Surfing the public Internet and recording what one sees there is a violation of state and federal criminal law.Thus engaging in such activities as "recording IP addresses" (p. 11) and making "screen captures" (p. 8), according to Camara, makes you a criminal. (Better stop using SiteMeter! And remove that "Print Screen" button from your keyboard!) A federal court in New York has previously rejected similar arguments:
Defendants are hardly in a position to claim trespass, force, or fraud by MediaSentry. They are not in the position of even arguing that they had an expectation of privacy. If the allegation that the Doe Defendants placed copyrighted recording into index files for others to take at will and hereby trampled upon the exclusive owner's copyright domain are true, they have forfeited any expectation of privacy they may have had. Even if the information was illegally obtained, this does not necessarily foretell its inadmissibility during a civil trial. Other than an errant citation to a United States Supreme Court case, the Doe Defendants do not proffer any other precedent to uphold this notion that illegally obtained evidence is somehow excluded from a civil trial, and this Court has been unable to unearth any case to confirm this novel concept.(footnote omitted). Moreover, Camara's brief cites no federal law holding that evidence obtained in violation of law is inadmissible in a civil case. Compare Mejia v. City of New York, 119 F. Supp. 2d 232, 254 (S.D.N.Y. 2000) ("the Fourth Amendment’s exclusionary rule does not apply in civil actions other than civil forfeiture proceedings") ((citing Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363 (1998)).
With these papers, Camara has certainly signaled that he will litigate this case aggressively. Persuasively is another matter.