Monday, December 7, 2009

Court enters judgment vs. Tenenbaum and enjoins him from further infringement; explains fair use decision while slamming defense as 'truly chaotic'

Over four months after a jury ordered Joel Tenenbaum to pay $675,000 for using peer-to-peer networks to illegally download and "share" 30 of the major record labels' songs, Judge Nancy Gertner today issued a judgment against him for that amount. The court also enjoined the Boston University physics grad student from further infringement, and ordered him to destroy all unauthorized copies of the plaintiffs' songs in his possession.

Judgment and Injunction in Sony v. Tenenbaum
The court's injunction is a bit narrower than that requested by the plaintiffs; it omits, on First Amendment grounds, the labels' entreaty that Tenenbaum be enjoined from "promot[ing] ... using the Internet or any online media distribution system to infringe copyright." Here's the court's order explaining the scope of the injunction.

The court also issued a 38-page order elaborating on and confirming its decision, issued on the eve of trial, rejecting Tenenbaum's proposed fair use defense. I'll have much more analysis of the order later, but here are some of the highlights. The court:
  • Blasted the defense, led by Harvard Law School Professor Charles Nesson, for running a "truly chaotic defense" that raised fair use late and failed to cite relevant case law and evidence;
  • Criticized the defense for "mounting a broadside attack that would excuse all file sharing for private enjoyment" rather than making a narrow, fact-specific argument that took into account the facts of this case;
  • Cited Nesson's own amicus brief in a related case where he called the fair use arguments regarding uploading files "very weak";
  • Rejected nearly all of the defense's substantive arguments related to fair use, including the additional, extra-statutory factors it suggested, such as "assumption of risk" and the plaintiffs' marketing tactics that allegedly encouraged infringement.
  • Suggested, in dicta, that it may have been fair use to use peer-to-peer to obtain songs before they were made available legally through iTunes or similar legal services;
  • "[U]rge[d] -- no implore[d] -- Congress to amend the [copyright] statute to reflect the realities of file sharing" because of the "astronomical penalties for an activity whose implications [teenagers and students] may not have fully understood."
The court also set a schedule for post-trial motions, including Tenenbaum's expected constitutional challenge to the award of statutory damages. Tenenbaum's brief will be due January 4, and the labels' opposition January 18. The court is also permitting additional briefing, due December 31, on the labels' still-pending motion for sanctions regarding Nesson's practice of making unauthorized audio recordings of plaintiffs' counsel.

1 comment:

  1. Give him a fair trial and THEN hang him.
    I respect American jurisprudence.


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