Sunday, June 21, 2009

Tenenbaum: fair use factors 'just suggestions'; 'I have never denied using Kazaa to download and upload music'

Last Friday, the Canadian Broadcasting Company went looking for reaction to the Jammie Thomas-Rasset verdict. And who better to comment than Joel Tenenbaum, the Boston University physics grad student, who faces similar allegations at a July 27 trial? Tenenbaum unsurprisingly called the $1.92 million that a Minnesota jury awarded the major record labels "outrageous." And he gave a little more detail about his planned defense, admitting, "I have never denied using Kazaa to download and upload music." So how does he intend to wiggle out of it? Well, says Tenenbaum, I'll admit to using Kazaa, but not necessarily the seven songs the labels he says the labels accuse him of infringing:
I honestly don't remember whether I downloaded or uploaded those seven songs, or somebody else had done it on my computer. A lot of people used that computer. If someone else was using that computer at the time, I really don't know.
If the "I forgot which songs I infringed" defense doesn't work, there's always fair use. Tenenbaum goes on to explain the next layer of his defense, taking a rather novel view of the four fair use factors. In his words:
Those four criteria are non-binding. Those are just suggestions.
"Suggestions"? Maybe in Professor Nesson's classroom, but not in federal court. The statute itself is quite clear that a court's consideration of the four factors isn't a mere suggestion; it's mandatory: "the factors to be considered shall include..." (my emphasis). And the Supreme Court agrees, noting in Campbell v. Acuff-Rose:
Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.
(my emphasis). For Judge Gertner to treat the four factors as mere "suggestions" would be to ignore a binding statute and Supreme Court case law. I don't expect her to do that.

Also on the subject of Tenenbaum's fair use defense, Nesson today published a post to his blog (since apparently removed), seeking help finding "bases and data for our opinions of factors relating to whether joel’s clicks were unfair." The gist of Nesson's post is that the major labels have done a lousy job dealing with the Internet:
Copyright holders have since 1999 with the rise of Napster seen what happens if they do not offer songs for downloads as a reasonable price without restrictions.

Copyright holders have taken a deliberate risk and focused on short term profits by never seriously investing in new Internet-compatible or novel Internet-enhanced business models.

In 2000 they could have offered a Napster alternative offering paid digital music downloads of single songs.

File sharing alternative became usable roughly in the 2006-2008 timeframe while often still suffering from issues such as limited catalog size, digital restrictions, privacy invasion, “whole album only” requirements, etc.

As a reaction to the growing popularity of file sharing the copyright holders had a reflex to further focus more on short term profits. The industry as a whole has not engaged in the required long-term investments to cope with the digital age. Instead of starting experiments in 2000 the copyright holders have increasingly gone to battle file sharing and their customers. The existing players now risk being driven towards a Lehman brothers implosion and new players start to compete into their core market.

Even if we accept Nesson's version of events, I'm at a loss to see how this adds up to a fair use defense for his client. (I'm not alone; just ask Tenenbaum's own potential experts.) Copyright owners are under no obligation to make their works available in the format potential consumers may want, at precisely the time they want. Even assuming that the labels made bad business decisions, the law does not punish their mistakes by giving people like Joel Tenenbaum the right to copy and distribute their works for free.


  1. A search using Google and the search string "eon blog" presented the article as the first "hit". While selecting the link presented "page not found", selecting the cached version did produce the page. After having read the post I have to wonder if Mr. Nesson is planning on trying this matter as one involving copyright infringement or one involving the labels having selected a business model(s) that have not kept up with the times. Like you, I do not believe a court is likely to give consideration to an additional fair use factor directed to "bad business models".

    Mrs. Thomas-Russert (sp? I have also seen the name spelled Thomas-Rassert) has had two opportunities to bask in the limelight of 15 minutes of fame. I fear Mr. Tenenbaum is embarking down the same path and am not at all sanguine he stands any greater chance of success as he tilts at windmills.

    BTW, an "excellent legal analysis" has been presented over at techdirt by its resident copyright expert. If you are inclined to take an amusement break, you might enjoy the perusing the analysis.

    M. Slonecker

  2. If I may, do you have any plans to attend the Tenenbaum trial in Boston? I must say I found your commentary by blog and Twitter very informative and balanced.

  3. @Anonymous 9:33:

    Thank you. I hope to be able to get to Boston, but I'm not sure I'll be able to swing it. I'm also not entirely sure there will be a trial; a grant of summary judgment for the plaintiffs is within the realm of possibility.

  4. While the four fair use factors are statutory, they are also non-exclusive, so if Nesson can come with with others that the court accepts, the court is not forbidden from considering those in addition to the statutory factors.

  5. @Diabolos: It's true that the 4 factors are non-exclusive. But it's very, very rare for courts to rely on any beyond the 4 in the statute. Keep in mind that there have been 3 appellate decisions on fair use in the p2p context, and all of them have soundly rejected the defense. Judge Gertner cited one of them, BMG Music v. Gonzalez, in her decision allowing Tenenbaum to amend his answer to add a fair use defense. And remember that Tenenbaum's potential experts opined that existing law rejects fair use in these circumstances (a fact that Judge Gertner noted in her order last week).

  6. Well, what exactly are we fighting for then? I mean, if Tenenbaum and Thomas are both guilty, really why are we following this so closely? We all know that MILLIONS of citizens are downloading songs right now, and it looks as if the RIAA is within its rights to go after them.

    I think the only thing we have hope to change is the exorbitant statutory damages. Either that, or someone really needs to take them to task for associating an IP address with an actual person when there is absolutely no way that can be proven. It seems that is Tenenbaum's best defense because he said many others used his computer. But, his very first statement was an admission that he uses P2P to download copyrighted works.

    I think we need to be working to change the law, not defending these idiots who couldn't help themselves.

  7. Ben, you may be right on the summary judgment. He apparently admitted that he engaged in file sharing during a deposition, and it would take a miracle to convince a judge to allow fair use to go to the jury when it appears that every single enunciated factor weighs against them under the controlling precedent.

    But if this happens, wouldn't the plaintiffs and/or defendant still have the right to have damages decided by the jury? would this leave the damages amount as the sole issue for trial? If so, that might actually work in favor of the defendant. The jury would not have an opportunity to get upset at a def. who they beleive to be lying about file sharing, because the def. will not even have opportunity to testify accordingly. The def's can focus entirely on establishing that $750 -- and certainly $150K -- per song is excessive.

    in contrast, if liability is allowed to go to the jury, the jury will hear joel claim that he "doesn't remember whether he downloaded *those seven* songs," get upset at their time being wasted as the JT jury did, and stick him with huge damages.

  8. @Anonymous 2:34:

    "But if this happens, wouldn't the plaintiffs and/or defendant still have the right to have damages decided by the jury?"

    Courts have held that if the plaintiff opts for the minimum statutory damages of $750/work, they *don't* have a right to a jury trial on damages. The labels won at least one case just this way:

    More here:


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