Labels move for summary judgment on Tenenbaum's fair use defense; 'habitual' p2p user simply wanted 'to get music for free'

Calling Joel Tenenbaum a "long-term, habitual user of peer-to-peer ... networks," the record label plaintiffs late Monday moved for partial summary judgment, asking Judge Nancy Gertner to rule that Tenenbaum's fair use defense is without merit and should not be presented to a jury.
Plaintiffs Motion for Summary Judgment on Fair Use in Sony v. Tenenbaum

The plaintiffs present evidence -- much of it in the form of admissions by Tenenbaum himself -- that the defendant has used multiple p2p networks for nearly 10 years for one simple purpose: "to get music for free." In sum:

No conceivable set of facts exists that would allow Defendant’s unlawful copying and distribution to be considered fair use, and every court to rule on the issue on facts nearly identical to those presented here has rejected any claim of fair use by infringers like Defendant. See A&M Records v. Napster, Inc., 239 F.3d 1004, 1019-29 (9th Cir. 2001) (“Napster users are not fair users”); BMG Music v. Gonzalez, 430 F.3d 888, 891 (7th Cir. 2005) (downloading copyrighted songs cannot be defended as fair use). Indeed, Defendant’s own legal consultants, well known copyleftists, have stated that the concept of fair use does not – and should not– encompass P2P file sharing, and that it is a disservice both to the concept of fair use and to copyright law in general to suggest that it could.

Given the unanimous case law rejecting fair use in the context of this case, the complete lack of any cogent theory or evidence from Defendant to support a fair use defense, and the unequivocal rejection of fair use as a defense in this case by Defendant’s own legal consultants, it is obvious that Defendant does not seek to advance any legitimate notion of fair use at all. Rather, Defendant’s belated fair use theory is nothing but a desperate attempt to present to the jury an argument for ignoring the clear law with respect to infringement and to avoid responsibility for his massive and continuous infringement of Plaintiffs’ copyrighted sound recordings. Because there are no disputed issues of material fact with respect to Defendant’s affirmative defense of fair use, Plaintiffs should be granted judgment on this defense as a matter of law.

Plaintiffs dutifully march through the four fair use factors, citing the case law that without exception has rejected fair use arguments in defense of p2p "sharing." They liberally cite Judge Gertner's own ruling in Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass. 2007), where she rejected a fair use defense on summary judgment, in a case where the fair use argument was (though quite weak), far more plausible than Tenenbaum's. And they repeatedly reference the now-infamous March 2009 email exchange in which a group of prominent scholars on the copyleft, whom Tenenbaum's counsel Charles Nesson had recruited as potential experts, tell him one-after-the-other that fair use provides no defense to Tenenbaum's p2p activities.

The motion also takes on the fair use factors Tenenbaum's has identified outside of the statutory four:

1) Defendant’s state of mind at the time he engaged in the infringing behavior; (2) the music industry did not employ a business model he approved of; (3) the availability of alternatives to P2P in readily accessible form was limited; (4) the music industry benefits from his illegal P2P file sharing; and (5) his emotional ties to the music make if fair.

Argue the plaintiffs:

Here, Defendant’s proposed "fairness" factors must be rejected for at least three reasons. First, where, as here, all four statutory factors weigh heavily against a finding of fair use, a defendant cannot survive summary judgment by asserting other, generalized arguments of fair use. Second, courts have consistently rejected virtually every argument raised by Defendant, and none of Defendant’s arguments serve the purpose of the fair use doctrine or the purpose of copyright law. Indeed, Defendant’s arguments, like his infringement, serve only his own narrow interests in getting his music for free. Third, because there is no legal or factual support for any fair use defense in this case, it is apparent that Defendant’s fair use argument is an improper
attempt at jury nullification.

Plaintiffs close with a plea to Judge Gertner not to allow Nesson to put Tenenbaum's meritless fair use arguments to a jury. These arguments, say the plaintiffs, are nothing more than an attempt at jury nullification. And they are right. Yes, fair use is fact-specific, and there are vast areas of gray within the doctrine. But there is also plenty of black and white, cases where the use is clearly fair or clearly not. Joel Tenenbaum's case does not present a remotely close question on fair use.

So, you may ask, why did the plaintiffs move for summary judgment only on fair use, and not on liability itself? Given the abundant evidence of Tenenbaum's infringement, from Tenenbaum's own admissions to the mountains of forensic evidence, I think they would have had a good shot. But the issue is damages. Had plaintiffs sought to avoid trial altogether, the most they could have sought in damages was the minimum statutory damages of $750 for each of the 30 works they have pursued. See BMG Music v. Gonzalez. If they wanted more, Tenenbaum would have been entitled to a jury trial under Feltner v. Columbia Pictures Television. Such a trial on damages would cover much of the same ground, with the same witnesses, as a trial on liability. So I suppose the plaintiffs decided to stick with their strongest argument -- no fair use -- on summary judgment, expecting that they will win at trial on liability, leaving the proper measure of damages in the jury's hands.

Tenenbaum's opposition is due this Friday, July 17 -- an extremely short time in which to draft a brief opposing summary judgment. Trial is set for Monday, July 27.

Here's the plaintiffs' Statement of Material Facts. And exhibits: Part 1, Part 2, Part 3, and Part 4.