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.