Monday, June 1, 2009

Jammie Thomas channels Bart Simpson: I didn't do it -- but it was fair use!

Jammie Thomas' counsel Kiwi Camara today denied that she downloaded any songs using Kazaa -- but said "that her infringement, if any, constitutes fair use." Or, as Bart Simpson might say, "I didn't do it. Nobody saw me do it. You can't prove anything."

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.


  1. This brief is so full of comedic gems that it should be accompanied by a laugh track. One of the marks of a good attorney is to know when not to file a brief. In this case, if Camara's arguments were taken at face value, it would criminalize the entire foundation of the internet as well as require ignoring the prevailing law on federal civil matters. Moreover, for an attorney to be throwing around accusations of ethical misconduct while at the same time offering arguments that have little or no support only impugns his reputation before the judge, which ultimately works a disservice to his own client. So while I understand his "kitchen sink" defense, I certainly don't condone it, especially for one allegedly taking the ethical high ground.

  2. Reminds me of that half-joke, half-legend about the legal argument that went "A: I never did anything to the cow, B: It wasn't his cow, C: There was no cow."

  3. "With these papers, Camara has certainly signaled that he will litigate this case aggressively. Persuasively is another matter."

    With these papers Mr. Camara also appears to demonstrate an almost conscious ingnorance of the fact that the suit is being brought by individual rights holders, and not the RIAA.

    The stated 512 and 1008 motions will be quite interesting to read. "Your Honor, placing music files in a 'share folder' makes me a service provider and confers immunity. Moreover, any copies of music I may have downloaded, an allegation I strongly deny and would be able to prove but for the fact Best Buy deliberately destroyed my original hard drive, would have been solely for my listening pleasure during our harsh Minnesota winters. If someone else would have made copies of them, then obviously it was for their listening pleasure and not mine."

    Between this case and that involving Mr. Tenenbaum, it will be an interesting summer indeed.

    If this is HLS at its finest, then please color me singularly unimpressed.

  4. Your comparison to Bart Simpson is seriously off the mark--arguing in the alternative is standard procedure.

  5. @ Anonymous 10:59:

    It's standard procedure in papers that only a judge would see. But I don't think it's standard procedure to argue in the alternative *to a jury*, which is apparently what Camara plans to do. Juries want a coherent story. "I was home reading the Bible at the time of the murder, but it was self-defense" is not a compelling story for a jury. Neither is "I never downloaded songs using p2p, but if I did, I was engaged in fair use."


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