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
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Congress also amended the report accompanying the '76 Act to change fair use from a defense, to an affirmative defense.
ReplyDeleteI 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
ReplyDeleteWhile I think they are likely to lose on this issue, I do not think it is as "crystal clear" as you assert. The Betamax case states: "If the Betamax were used to make copies for a commercial of profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that the time-shifting for private home use must be characterized as a noncommercial, nonprofit activity."
ReplyDeleteThomas can assert that she did not make any copies for commercial or profit-making purpose, and so the "contrary presumption" is appropriate; namely, that her use was presumptively fair. The appropriate legal mechanism to effectuate this presumption is to require Plaitniffs to plead fair use as part of their affirmative case. Your quotation from Harper does state the general rule, but arguably does not address the special case of noncommercial users.
Of course, they have to somehow argue that Thomas is a noncommercial user. The Napster decision seems to indicate she would not be. But it is not controlling, and Thomas has a strong argument that file sharers are exploring new music and allowing others to do the same without ever seeking a dime. Of course, this may be a hard argument because clearly most file sharers are simply trying to avoid having to pay for music -- saving money can be equated to profiteering.
I think they are likely to lose, but these are good issues to preserve for appeal. It seems odd to view file sharers as commercial users in the same way as profit-seeking corporations. This is an anomaly that a court of appeal should take up.
@Anonymous 2:37:
ReplyDeleteSeems to me that the issues of whether fair use is an affirmative defense, and whether there are any presumptions, are independent. Why couldn't it logically be the case that: 1) fair use is an affirmative defense that must be pled in the defendant's answer; but 2) non-commercial uses are presumptively fair, and thus the defense wins unless plaintiff can overcome the presumption?
As to whether, under current law, non-commercial uses are presumptively fair: I admit I haven't looked into this in detail. Campbell v. Acuff-Rose does seem to be hostile to any presumptions in fair use analysis: http://www.law.cornell.edu/supct/html/92-1292.ZO.html
And Bill Patry (whose work is cited in Campbell) seems to be unequivocal in his belief that fair use is an affirmative defense:
http://williampatry.blogspot.com/2005/10/what-are-affirmative-defenses.html
"In Harper & Row v. Nation Enterprises, the Supreme Court held (at my urging) that fair use is an affirmative defense. It has to be pled by defendant, who has the burden of proving it. Other provisions in Sections 107-122 support this reading: the compulsory licenses in Sections 111, 114, 115, 116, 118, 119, which have the same phrasing as Section 107, are classic licenses that FRCP 8(c) regards as affirmative defenses. And treating fair use as an affirmative defense comports with how it is usually tried: the defendant says, "yes I copied, but I get off the hook because my use is transformative, etc.""
No useful purpose is served by making a comment to engender yet another debate about the metes and bounds of "fair use", and particularly in a blog setting where long-winded "scholarly dissertations" are simply out of place.
ReplyDeleteI would, however, like to make one point. AC at 2:37 happens to note "Thomas can assert that she did not make any copies for commercial or profit-making purpose, and so the "contrary presumption" is appropriate; namely, that her use was presumptively fair."
Would it not be more accurate to rephrase the comment as follows:
"Thomas can assert that she did not make any copies...of the unauthorized files she downloaded...for commercial or profit-making purpose, and so the "contrary presumption" is appropriate; namely, that her use was presumptively fair."
Of course, it is in my view useful to note that Universal v. Sony dealt with contributory infringement. Please correct me if I am mistaken, but I believe Mr. Thomas' case is proceeding on the basis of direct infringement. Moreover, the only transformative nature of her actions is that she transformed a section of her hard drive such that it replicated a copy of each unauthorized copy she downloaded.
Fair use clearly is an affirmative defense: I don't know what more you need than two Supreme Court cases saying though. I had hoped too that after Campbell we had gotten away from the presumptions stuff.
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