Arguing that "this prosecution is not fair to him or to his generation," Joel Tenenbaum today filed his opposition to the record label plaintiffs' motion for summary judgment on Tenenbaum's fair use defense.
Opposition to Sumary Judgment Motion Re Fair Use
What to say about a brief that simply fails to address the scores of cases cited in the plaintiffs' brief? Just totally ignores them? That neglects Local Rule 56.1, which mandates the filing of a "concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." That says things like "Plaintiffs have shown no discernible actual effect from Joel’s conduct on Plaintiff's revenues," when the Supreme Court has said the actual standard is whether, if the challenged actions "should become widespread, it would adversely affect the potential market for the copyrighted work"? And while failing to mention plaintiffs' expert's submitted evidence of harm? That makes countless factual assertions without citation to admissible evidence? That invents out of thin air doctrines like an "assumption of risk" fair use factor? That asserts, "[t]he issue of fairness that is raised by this case is a novel one," while failing to acknowledge that there is in fact federal appellate precedent from two circuits rejecting the fair use defense in almost identical circumstances?
Let's just say that if, after graduation, one of Professor Nesson's students turned in such a brief to a partner at his or her law firm, it would be but the first of many, many drafts. And probably the jumping-off point for a very unpleasant conversation.