I don’t think I’m giving away the subtleties of our “Super Secret Strategy” by saying that all evidence presented will be channeled into the four statutory fair use factors, as well as an additional factors Nesson will argue should also be held for consideration. Nesson believes we stand very well on the four factors, although it’s interesting to note that they are just suggestions. It is mandatory that you consider them, but there are no instructions on their interpretation, nor are they imposed to be the only factors to consider.To say that the fair use factors are mere "suggestions" and that "there are no instructions on their interpretation" is just false. There are tens of thousands of pages of "instructions"; they're called "case law." And all of the case law on fair use in the peer-to-peer context flatly rejects the defense. See A&M Records, Inc. v. Napster, Inc. (upholding rejection of fair use defense at preliminary injunction stage); BMG Music v. Gonzalez (upholding rejection of fair use on summary judgment). (Not to mention that Tenenbaum's own potential experts think the fair use defense is a sure loser, a fact of which Judge Gertner herself has taken note.)
Remember: Judge Gertner has not ruled that she will permit Tenenbaum to argue fair use at trial. Rather, she has merely permitted Tenenbaum to amend his answer to include a fair use defense, and to take limited discovery on the issue. And by citing to Gonzalez, among others, she clearly recognizes that fair use is usually (i.e., almost always) resolved short of trial by the court, not a jury. Notably, two years ago Judge Gertner herself granted summary judgment in favor of a copyright plaintiff on fair use. See Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass 2007) (inclusion of photo in news broadcast was not fair use). I expect the plaintiffs to move for summary adjudication on Tenenbaum's fair use defense, and precedent clearly supports granting such a motion.
Two remaining questions as we head toward trial: 1) what happened to the "foster child, exchange student from Burkina Faso, or burglar" defense? And 2) where's the "Sam Waterston-level, big-name litigator [who will] plead the case when it comes to trial"? (Is that Feinberg? Or is the team still holding auditions?)