Some additional thoughts on the Tenenbaum fair use opinion: mainly right on fair use, but why all the dicta?

Today's Memorandum and Order explaining the court's July 27 grant of summary judgment against Joel Tenenbaum's fair use defense was, in one respect, unnecessary. Judge Nancy Gertner had already made her decision (and explained it, albeit briefly), and what she said in elaboration won't change the jury's $675,000 verdict in favor of the record labels. But she did promise a full opinion, and she delivered. And her order is nonetheless important, and extraordinary, for several reasons.

Fair Use Memorandum and Order in Sony v. Tenenbaum

Blasting Nesson
Judge Gertner's order is one of the harshest assessments of an attorney's performance in a civil case that I've ever seen. She leaves absolutely no doubt that she believes Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, did a terrible job. She calls the defense "truly chaotic." Order at 2. She says that Nesson "repeatedly missed deadlines" and "ignored rules." Id. at n.3. She says that Nesson's practice of making unauthorized audio recordings of opposing counsel and the court and posting them to the Web is "plainly illegal" under Massachusetts criminal law. Id. (The plaintiffs' sanctions motion regarding the recordings remains pending.)

More substantively, Judge Gertner makes clear that Nesson's poor litigating harmed Tenenbaum's fair use defense. She notes that he first promised the court that he would not seek to amend his pleadings (which was necessary to add the affirmative defense of fair use), but then reversed himself. Order at 1. And Nesson's papers opposing the labels' summary judgment motion on fair use "can only be described as perfunctory." Id. at 3. His arguments, said Judge Gertner, were not properly crafted for this case. "Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment," she wrote. Id. at 4. And Nesson's summary judgment opposition "did not come close" to doing what such papers must: identify disputed issues of material fact. "He offered few disputed facts and little, if any, legal authority for his position. His opposition briefs were not accompanied by any affidavits, expert reports, deposition testimony, or other evidence of the kind required by Federal Rule of Civil Procedure 56(e)(2)." Id. at 5. His showing on market harm was "extraordinarily meager." Id. at 7.

What makes Judge Gertner's rebuke all the more stinging is that she personally recruited him to take on Tenenbaum's case. Who better to mount a defense than a Harvard Law School professor, the founder of the Berkman Center for Internet & Society, and a long-time acquaintance of Judge Gertner who had even successfully represented her in a case back in the 1980s? And Judge Gertner makes no secret of the fact that her sympathies lie with Tenenbaum, and not the labels. See Order at 2 (the court is "deeply concerned by the rash of file-sharing lawsuits"), 3 ("the Court was prepared to consider a more expansive fair use argument than other courts have credited"), 34 ("As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written.").

In sum, it's fair to conclude from Judge Gertner's order that she believes a competent attorney could have drafted a brief opposing summary judgment that would have raised sufficient disputed material facts to send the issue to the jury. Would a jury would have ultimately bought the defense? I have grave doubts; they quite obviously believed that what Tenenbaum did was wrong (and my conversation with one of the jurors confirmed that).

Finally, what must the Harvard administration think? Do they approve of Nesson's behavior? Do they care?

A solid win for the plaintiffs on fair use
On the substantive legal points that she needed to decide, Judge Gertner got the fair use analysis right. She understands that fair use is not a free-floating referendum on "fairness," where the defendant gets to argue pretty much whatever he wants to the jury. See Order at 5 ("The doctrine of fair use is not infinitely malleable, requiring a jury determination every time it is intoned, no matter what the facts."). She gets that copyright infringement is harmful to the legitimate market. See id. at 7 ("There can be no question that on this record continuous, high-volume file-sharing -- offering exact copies to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works."). She correctly rejected Nesson's assertion that "non-commercial" uses are presumptively fair. See id. at 14-15.

On the four statutory factors, I have some quibbles, but Judge Gertner correctly concluded that they all favored the plaintiffs. She disagreed with the Ninth Circuit in Napster in declining to find that Tenenbaum's activities were "commercial," instead finding that they were "somewhere in the middle" between commercial and non-commercial. See Order at 17. But she still found that the first factor cuts against fair use, as Tenenbaum's use of p2p "was not accompanied by any public benefit or transformative purpose." The second factor favored the labels because the recordings are creative works, see Order at 18-19, and on the third, she correctly treated the song, not the album, as the relevant metric for determining how much of the work Tenenbaum used, see id. at 19-21. And the analysis on the fourth factor, concerning the effect on the market, is solid. Judge Gertner properly identified the inquiry as "whether unrestricted and widespread conduct of the sort engaged in by the defendant...would result in a substantially adverse impact on the potential market for the original," and concluded that, here, it would: "The Copyright Act grants the plaintiffs an exclusive right to distribute these works; file-sharing effectively displaces that right, and the market it represents, by offering the same works for free." Id. at 24. And lastly, Judge Gertner properly rejected Tenenbaum's extra-statutory factors, including assumption of risk, the plaintiffs' marketing activities, and failure to use DRM. See id. at 25-30.

An overabundance of dicta
It's toward the end where I believe Judge Gertner's opinion fails to hew closely to the case law and facts. She is way too indulgent of Tenenbaum's argument that his use of KaZaA to get songs for free should be excused because there were supposedly insufficient legal alternatives. This argument fails, both legally and factually. The labels were under no obligation to offer to Tenenbaum (or anyone else) their songs in precisely the format he preferred, and their alleged failure to do so does not result in the loss of their exclusive rights under the Copyright Act. (The Beatles don't offer their songs on the Web. So can BlueBeat.com sell them for 25 cents a piece and call it fair use?) Moreover, as a factual matter, it's simply false to say that there were no legal alternatives to p2p while Tenenbaum was downloading hundreds of songs without paying for them; Judge Gertner's only rejoinder to the plaintiffs' evidence on this front is a quote from a 2003 USA Today article saying that iTunes is "the first legitimate Net service to hit all the high notes." Order at 31 n.15. Even if all of the pre-iTunes services were pitiful compared to iTunes, that hardly means that copyright law stops protecting the labels' works. Furthermore, as Judge Gertner acknowledges, see id. at 32, there were plenty of legitimate services by August of 2004, when Tenenbaum's infringement was detected, which renders much of this discussion dicta -- musings unnecessary to resolution of this case, but likely to cause mischief down the road. And Judge Gertner's listing in the Conclusion, see Order at 35-37, of various p2p scenarios she can "envision" as fair use, is dicta of the purest sort, disquisition on issues that were simply not before the court.

Finally, Judge Gertner states that she is "very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written" and "urges -- no implores -- Congress to amend the statute to reflect the realities of file-sharing." Order at 34. I believe this passage, which again is completely unnecessary dicta, is inappropriate. A federal judge's role is to state what the law is, and apply it faithfully. (I believe Judge Gertner did that.) But I believe it undermines public confidence in the neutrality and impartiality of the judiciary when a judge steps outside her role in deciding cases, and expresses her personal opinion about what the law should be. It's a point Tom Sydnor made after Judge Michael Davis made similar comments critical of the first Jammie Thomas-Rasset verdict, and his words apply with equal force here:

When judges develop opinions on questions of law or policy, they usually communicate them through extrajudicial means like speeches or articles. Judges rarely use THE FEDERAL SUPPLEMENT to advise Congress that it enacted unwise laws. But even if the urge to condemn Congress becomes irresistible, judges almost never support their advisory opinions by characterizing issues in a pending case.

Perhaps the saving grace for the plaintiffs, as they defend the their verdict against constitutional attack, is that Judge Gertner's words signal a recognition that the law, as currently written , favors their position, however distateful she may find that prospect.