It makes no difference what factual fair-use findings various courts have made in other equitable and jury-waived contexts. The particular facts of those other cases will not be before Jammie Thomas’s jury. Nor did those decision-makers have occasion to consider the arguments that we plan to advance. The nature of the fair-use standard is such that juries necessarily decide each case on the argument and evidence there presented.If those words sound familiar, that's because they come right from a brief filed by Nesson on May 15 in defense of Joel Tenenbaum, as does most of Camara's opposition to the record labels' motion in limine to exlcude Thomas' purported fair use defense. Perhaps it shouldn't be surprising that Camara intends to argue that fair use precedent is irrelevant, given that the cases considering fair use in the p2p context uniformly reject the defense. See BMG v. Gonzalez, Napster, and Aimster.
Camara's brief only obliquely addresses the labels' main argument: that fair use, an affirmative defense, was waived by Thomas' failure to assert it in her answer. See FRCP 8(c). The brief asserts that fair use is not an affirmative defense, citing Sony-Betamax. But Sony-Betamax says no such thing. And Harper & Row v. Nation, decided after Sony-Betamax, makes crystal clear that fair use is an affirmative defense: "The drafters [of the 1976 Act] resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis."
Camara has filed a strange brief that simply fails to address most of the plaintiffs' arguments and the controlling law. I expect the court to grant the labels' motion to exclude the fair use defense from Thomas' June 15 re-trial.
UPDATE: an anonymous commenter makes a great catch:
I think that the most important point of Camara copying Neeson's brief is what he did NOT copy. Camara uses essentially the entire paragraph Neeson writes on the history of fair use, except for one sentence...the sentence in the middle of Neeson's history lesson, stating that fair use is known "specifically as an affirmative defense." Hmmm, I wonder why Camara chose to omit that :-p