Labels cite academics' emails in Tenenbaum case; note rejection of fair use defense by defense experts

When Harvard Law Professor Charles Nesson posted to his blog an email chain that featured his potential expert witnesses -- top copyleft academics -- criticizing his plan to mount a fair use defense, it was an amusing and highly unusual sideshow: a rare behind-the-scenes look into internal legal discussions that usually remain secret. But now, those emails have become part of the Joel Tenenbaum case itself.

In a brief opposing what by the labels' count is Tenenbaum's effort to file a fourth version of his answer (I believe "fourth" is right, though the proposed amendment is styled as "Second Amended Answer"), the record label plaintiffs have made ample use of those emails, in support for their argument that the addition of fair use as an affirmative defense would be futile:

The legal scholars Defendant has relied on unanimously agree that an affirmative defense of fair use fails as a matter of law and would refuse to testify that Defendant’s actions constitute fair use. Indeed, in a series of emails made public by Defendant’s counsel, Defendant’s scholars explain that fair use does not – and should not– encompass filesharing.

First, William Fisher, professor of intellectual property law and faculty director of Mr. Nesson’s own Berkman Center for Internet and Society proclaimed, “I cannot, however, testify that Joel’s activity constitutes a fair use under current copyright law, because I don’t think it does.” (March 29, 2009 email from William Fisher to Charles Nesson. Exhibit D). He further explained: “In my view, the fair use doctrine has other, important functions in the copyright scheme [ . . .] which would be impaired by twisting it to address this particular problem.” (March 29, 2009 email from William Fisher to Charles Nesson. Exhibit E).

Similarly, Lawrence Lessig, founder of Stanford Law School’s Center for Internet and Society opined to Defendant’s counsel, in no uncertain terms:

"I am surprised if the intent is to fight this case as if what joel did was not against the law. of course it was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn’t."

(March 29, 2009 email from Lawrence Lessig to Charles Nesson, Exhibit B). Professor Lessig also proclaims that “P2P filesharing is wrong and kid’s shouldn’t do it,” and informs Defendant’s counsel that there is no “honest frame for joel’s case” other than jury nullification. Id.

Finally, Wendy Seltzer, professor of information privacy and intellectual property at Washington College of Law and fellow with the Berkman Center, shared her opinion that Defendant’s conduct is not fair use. “Add me to those puzzled by the ‘fair use’ arguments. I understood the argument to be that statutory damages are inappropriate and unconstitutional in response to personal-use copying, not that such copying was within the bounds of existing law.” (March 29, 2009 email from Wendy Seltzer to Charles Nesson. Exhibit C). Professor Seltzer further explains: “I fear that we do damage to fair use by arguments that stretch it to include filesharing.” Id.

In addition to Defendant’s scholars’ conclusions that Defendant’s infringement does not constitute fair use, a member of Defendant’s own legal team concluded that fair use is “an argument which has no real basis in case law or moderate academic scholarship.” (March 29, 2009 email from [REDACTED] to Charles Nesson, Exhibit F).

I suspect that the case law on delay in amendments and the futility of the fair use defense in the p2p context will have the largest impact on the court. But the emails released by Nesson certainly provide some powerful rhetoric that will aid the labels in keeping fair use out of this case -- where it belongs.

(h/t Recording Industry vs. The People)