Tenenbaum: fair use factors 'just suggestions'; 'I have never denied using Kazaa to download and upload music'

Last Friday, the Canadian Broadcasting Company went looking for reaction to the Jammie Thomas-Rasset verdict. And who better to comment than Joel Tenenbaum, the Boston University physics grad student, who faces similar allegations at a July 27 trial? Tenenbaum unsurprisingly called the $1.92 million that a Minnesota jury awarded the major record labels "outrageous." And he gave a little more detail about his planned defense, admitting, "I have never denied using Kazaa to download and upload music." So how does he intend to wiggle out of it? Well, says Tenenbaum, I'll admit to using Kazaa, but not necessarily the seven songs the labels he says the labels accuse him of infringing:

I honestly don't remember whether I downloaded or uploaded those seven songs, or somebody else had done it on my computer. A lot of people used that computer. If someone else was using that computer at the time, I really don't know.

If the "I forgot which songs I infringed" defense doesn't work, there's always fair use. Tenenbaum goes on to explain the next layer of his defense, taking a rather novel view of the four fair use factors. In his words:

Those four criteria are non-binding. Those are just suggestions.

"Suggestions"? Maybe in Professor Nesson's classroom, but not in federal court. The statute itself is quite clear that a court's consideration of the four factors isn't a mere suggestion; it's mandatory: "the factors to be considered shall include..." (my emphasis). And the Supreme Court agrees, noting in Campbell v. Acuff-Rose:

Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.

(my emphasis). For Judge Gertner to treat the four factors as mere "suggestions" would be to ignore a binding statute and Supreme Court case law. I don't expect her to do that.

Also on the subject of Tenenbaum's fair use defense, Nesson today published a post to his blog (since apparently removed), seeking help finding "bases and data for our opinions of factors relating to whether joel’s clicks were unfair." The gist of Nesson's post is that the major labels have done a lousy job dealing with the Internet:

Copyright holders have since 1999 with the rise of Napster seen what happens if they do not offer songs for downloads as a reasonable price without restrictions.

Copyright holders have taken a deliberate risk and focused on short term profits by never seriously investing in new Internet-compatible or novel Internet-enhanced business models.

In 2000 they could have offered a Napster alternative offering paid digital music downloads of single songs.

File sharing alternative became usable roughly in the 2006-2008 timeframe while often still suffering from issues such as limited catalog size, digital restrictions, privacy invasion, “whole album only” requirements, etc.

As a reaction to the growing popularity of file sharing the copyright holders had a reflex to further focus more on short term profits. The industry as a whole has not engaged in the required long-term investments to cope with the digital age. Instead of starting experiments in 2000 the copyright holders have increasingly gone to battle file sharing and their customers. The existing players now risk being driven towards a Lehman brothers implosion and new players start to compete into their core market.

Even if we accept Nesson's version of events, I'm at a loss to see how this adds up to a fair use defense for his client. (I'm not alone; just ask Tenenbaum's own potential experts.) Copyright owners are under no obligation to make their works available in the format potential consumers may want, at precisely the time they want. Even assuming that the labels made bad business decisions, the law does not punish their mistakes by giving people like Joel Tenenbaum the right to copy and distribute their works for free.