Monday, July 20, 2009

Tenenbaum files supplemental summary judgment opposition on fair use issue: Don't apply law to Net's 'global ocean of free bits'

Joel Tenenbaum today filed a supplemental brief in opposition to the record labels' motion for summary judgment.

Defendant's Supplemental Opposition to Motion for Summary Judgment Re Fair Use

Tenenbaum's summary judgment opposition brief was due last Friday (here it is), and he gives no explanation for filing what is clearly an untimely brief. (This is not the brief on the judge/jury issue that is due at 6:00 p.m. today.)

Substantively, this brief adds very little. It still fails to address the scores of cases cited by plaintiffs, and most notably the rejection of the fair use defense in the p2p context by the courts in Napster and BMG Music v. Gonzalez. It ignores that, only a month ago, Judge Michael Davis held that, under Campbell v. Acuff-Rose, there is no presumption of fair use even for non-commercial uses (putting aside Napster's holding that use of p2p is commercial for fair use purposes): "The Supreme Court has explicitly rejected any fair use presumption based on commercial or non-commercial use." The brief appears to concede that Tenenbaum "believed he was acting illegally" when he used Kazaa to obtain music. And it includes this gem, inventing a brand new way of looking at the "nature of the use" fair use factor:
The nature of the copyrighted work is music in the form of bits in free and open mp3 format. This factor favors Joel Tenenbaum because the idea of imposing law on the global ocean of free bits that has flooded into cyberspace is a gross and harmful over-extension of the power of the state and authority of the law.
Think about that for a second: Tenenbaum is arguing that law simply can't be applied to the "global ocean of free bits" on the Internet. This isn't a call for reasonable reform of copyright; it's a plea for total anarchy.

Judge Gertner would be entirely justified in doing exactly what she did last week with regard to Tenenbaum's attempt to add a new expert well after the deadline: ignore the strange new arguments and simply strike it as late.


  1. These aren't briefs. These are press releases. And it doesn't matter whether they are accepted or rejected; they were filed, and now they're part of public record, and the apparatus of the court system has been turned into Charlie Nesson's mouthpiece.

  2. Is this defense so bad it is actually prejudicial to the defendant's right to a fair trial?

  3. Judge Gertner issued an order today that she was holding the fair use motion "under advisement." That's incredible. I'm assuming that is, for now, the same as denying it. If she was going to decide it before trial, you'd think she would not say anything or say when she would rule on it. But this seems to mean that she is going to let in evidence on it and potentially decide it after trial (or right before jury instructions). That seems crazy given the papers filed on the issue.

  4. I am well aware that there are two sides to every story. Having heard Mr. Tenebaum's side of the story as articulated by Mr. Nesson, I can only shake my head in utter disbelief at the legal arguments being presented by Mr. Nesson.

    Perhaps Mr. Nesson would do well to have his submittals to the court parsed by a second set of "eyes" who has actually read and closely studied the very cases relied upon by Mr. Nesson. If Mr. Nesson actually believes that the basis he asserts for a fair use defense has merit, I can only hope for his sake that this case does not proceed on appeal to the Supreme Court and arguments heard. I am not sanguine he would be able to deal with a 9-0 decision in favor of the rights holders.

  5. @Anonymous 10:21:

    I am told that Judge Gertner said at this morning's pretrial conference that she intends to rule on the labels' fair use summary judgment motion by mid-week.


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