I don’t think I’m giving away the subtleties of our “Super Secret Strategy” by saying that all evidence presented will be channeled into the four statutory fair use factors, as well as an additional factors Nesson will argue should also be held for consideration. Nesson believes we stand very well on the four factors, although it’s interesting to note that they are just suggestions. It is mandatory that you consider them, but there are no instructions on their interpretation, nor are they imposed to be the only factors to consider.To say that the fair use factors are mere "suggestions" and that "there are no instructions on their interpretation" is just false. There are tens of thousands of pages of "instructions"; they're called "case law." And all of the case law on fair use in the peer-to-peer context flatly rejects the defense. See A&M Records, Inc. v. Napster, Inc. (upholding rejection of fair use defense at preliminary injunction stage); BMG Music v. Gonzalez (upholding rejection of fair use on summary judgment). (Not to mention that Tenenbaum's own potential experts think the fair use defense is a sure loser, a fact of which Judge Gertner herself has taken note.)
Remember: Judge Gertner has not ruled that she will permit Tenenbaum to argue fair use at trial. Rather, she has merely permitted Tenenbaum to amend his answer to include a fair use defense, and to take limited discovery on the issue. And by citing to Gonzalez, among others, she clearly recognizes that fair use is usually (i.e., almost always) resolved short of trial by the court, not a jury. Notably, two years ago Judge Gertner herself granted summary judgment in favor of a copyright plaintiff on fair use. See Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass 2007) (inclusion of photo in news broadcast was not fair use). I expect the plaintiffs to move for summary adjudication on Tenenbaum's fair use defense, and precedent clearly supports granting such a motion.
Two remaining questions as we head toward trial: 1) what happened to the "foster child, exchange student from Burkina Faso, or burglar" defense? And 2) where's the "Sam Waterston-level, big-name litigator [who will] plead the case when it comes to trial"? (Is that Feinberg? Or is the team still holding auditions?)
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To say that the fair use factors are mere "suggestions" and that "there are no instructions on their interpretation" is just false.
ReplyDeleteI'm sorry, but this comment of yours is itself false.
It's true that the law obligates courts to consider the 4 fair use factors in their decisions, so in that limited sense they are not "suggestions". But Tenanbuam himself says this in what you quoted from him and your own comment clearly distorts what he is trying to say. His larger point is that case law on fair use is always very fact specific in the context of individual cases - thus providing little value in terms of legal precedent.
Though I've always felt that that the legal community has placed too much reliance on his authority, its still useful to note that even Professor Nimmer has lamented "the almost infinite elasticity of each of the four factors, and their concomitant inability to resolve the difficult questions." [Nimmer on Copyright at 13-186.]
Despite all of the case law that has come before, judges can either broadly stretch or narrowly contract their interpretations of each of the 4 factors any way they want in order to come to a preordained conclusion that they consider to be "fair". Their "infinite elasticity" allows judges to make rulings that are more based on their personal concepts of "fairness" rather than objective formulas dictated by law. Some judges are more inclined to interpret fair use broadly. Others, less so. It may turn on how the judge perceives the specific parties and where his/her personal sympathies lie.
You yourself are no doubt aware of this dynamic when John McCain made the suggestion that fair use ought to be interpreted more broadly when candidates post copyrighted material on Youtube during a campaign - compared to when the "common people" try to post copyrighted material there. Like many, I found McCain's suggestion to be laughable and condescending in its elitism. But it still proves the larger and valid point that that there are no hard and fast rules when it comes to fair use. That is the only point that Tenenbaum was trying to make here. I don't know if you simply misinterpreted his remarks or deliberately tried to distort them, but he is undoubtedly correct.
The fact that every case thus far involving peer-to-peer file sharing has found against fair use does not mean that there is a bright line red-letter rule that a fair use defense is never available in a peer-to-peer context.
Here is a hypothetical to illustrate: [Continued on part 2 of comments below...]
[Part 2 of 2 of my comment. See Part 1 above.]
ReplyDelete[Hypothetical]: Mr. X buys a CD at a music store. After purchasing the music, he discovers that the CD is defective. Now let's say that before X gets a chance to return the merchandise, the store either goes out of business, burns to the ground, or suffers an Act of God such that it is unable to exchange the CD for a working copy.
As a result, X goes on-line and (using 'unauthorized' peer-to-peer) downloads only the tracts that he paid for on his defective CD for his personal use. He keeps the downloaded tracks in a personal computer folder.
Then one day, he receives proof that Ms. Y who lives across the country paid for the same CD but had it irreparably damaged to the carelessness of a neighbor's pet. Discovering her on-line peer-to-peer "handle", Mr. X contacts her and tells her she can download replacement tracks from him using the P-2-P software. He places his music files in a publicly accessible folder for a limited time in order to facilitate this.
When he confirms that Y has successfully downloaded her replacement tracks, he then puts the music files back into a private folder that is inaccessible to others. [End hypothetical.]
Given this hypothetical, would a court find fair use? The correct answer is: I don't know, and neither do you. But if you claim to know such an answer, then you would be engaging in pure sophistry in order to suit your legal/ideological biases in this area. The "tens of thousands of pages" of case law don't tell us a thing about this factually specific context.
Courts will surely quote from past decisions in order to put a veneer of authority on their own choices, but none of the past case law would COMPEL a specific decision on the fair use question one way or the other.
Naturally, the hypothetical that I posed is very different from the case Tenenbaum speaks about. But that is the whole point: Every case is different. Every case has its own set of facts. Therefore every case needs to consider the fair use defense on its own merits and not buy into the falsehood that past fair use case law automatically compels a certain outcome.
That is the only point Tenenbaum made here. On that limited point - he is right in this instance. You are wrong.
- Justin Levine (who mistakenly posted as Anonymous in part 1 of my comment.)
@Justin Levine:
ReplyDeleteIf Tenenbaum's argument was merely that fair use is a flexible and fact-specific doctrine, then I would agree. But he (and his attorney) make a much more sweeping argument: that "it makes no difference what factual fair use findings various courts have made in other equitable and jury-waived contexts." I read that as an argument that precedent simply doesn't matter in fair use analysis, which is clearly wrong. Relatedly, Tenenbaum's defense team has also said that fair use *always* goes to the jury, which is wrong as well; the fact is that the issue is almost always decided by a judge, often on summary judgment. Judge Gertner knows this perfectly well. See Fitzgerald v. CBS, cited above.
Your characterization of Senator McCain's argument about fair use -- that it "ought to be interpreted more broadly when candidates post material..." -- is totally false. I know, because I was the one making fair use arguments for the campaign. We argued that fair use should apply to our campaign's TV ads and web videos based simply on the statute and case law, which I would cite to anyone who complained. (Yes, it's true that the case law on fair use is favorable to political uses, and of course it was appropriate for us to point that out.) Our issue with YouTube had to to with its internal procedures for processing DMCA takedown notices, not about the scope of fair use.
This is the problem with people trying to say that something is handled on a "case-by-case" basis: everything is on a case-by-case basis (it reminds me of the old Sportscenter line that we are all "day-to-day"). That doesn't mean that all facts and arguments go to trial. Substantial similarity, for instance, is a highly fact specific inquiry. Yet cases get decided on that issue at summary judgment almost daily, and some are even handled at the motion to dismiss stage. The question is whether it would be reasonable given the facts and the law to come to two different/opposing conclusions--if so, a case or issue survives summary judgment.
ReplyDeleteI think the point that Mr. Tenenbaum's team misses (perhaps because it is a law school team, and I can say that I was certainly given the false impression way back when in law school that just about everything went to a jury as long as there was some dispute) is that if the law has handled similar issues in the past, even the types of issues that are handled "case-by-case" are easily disposed of at summary judgment. And I disagree with Mr. Levine's premise that nothing in the law would "compel" summary adjudication. If controlling law (from that Circuit's Court of Appeals or the Supreme Court) said: "it is not fair use for an individual to engage in unauthorized peer to peer file sharing of copyrighted works, whether he receives money in exchange or not," (or something that clearly meant that), that would "compel" a summary judgment ruling against fair use.
Lastly, keep in mind that the courts are being instructed by the Supremes to decide MORE issues pre-trial, not fewer. See Twombley, Iqbal, etc. (while those cases involve motions to dismiss, the trend has been clear).
Anonymous said:
ReplyDeleteAnd I disagree with Mr. Levine's premise that nothing in the law would "compel" summary adjudication. If controlling law (from that Circuit's Court of Appeals or the Supreme Court) said: "it is not fair use for an individual to engage in unauthorized peer to peer file sharing of copyrighted works, whether he receives money in exchange or not," (or something that clearly meant that), that would "compel" a summary judgment ruling against fair use.
Obviously. But since no controlling law has EVER said that, the point is completely irrelevant.
There is a reason why no court has ever held as a BRIGHT LINE RULE that "it is not fair use for an individual to engage in unauthorized peer to peer file sharing of copyrighted works, whether he receives money in exchange or not..." because fair use is a far more flexible concept than you (or Ben) are willing to admit. Therefore I am correct in asserting that no case law specifically COMPELS a specific outcome regarding fair use.
You completely misunderstood my argument. I was not arguing that the law doesn't favor summary adjudication for fair use defenses. I said that the law doesn't compel a SPECIFIC OUTCOME on how the issue will be decided in any given case. So please forgive me when I say that response is completely off the mark.
Ben -
ReplyDeleteNow that I have called you out on this issue, you are trying to change the nature of your argument.
I reacted to a very specific issue here. You took Tenenbaum to task for this specific comment: "Nesson believes we stand very well on the four factors, although it’s interesting to note that they are just suggestions. It is mandatory that you consider them, but there are no instructions on their interpretation, nor are they imposed to be the only factors to consider."
You clearly suggested that this statement was wrong. But those two sentences taken together are in fact correct. Every copyright attorney I know from Nimmer on down would agree with Tenenbaum and myself on this specific point. Now that I've pointed that out, you try and shift the argument away by claiming that he said that "it makes no difference what factual fair use findings various courts have made in other equitable and jury-waived contexts."
If he actually said those words, then why didn't you quote them verbatim when you made your own argument?? You didn't because he never actually said that and you are now trying to construct a straw-man argument which is what bloggers always do when they are called out on their snarkish puffery in order to make themselves look smart.
Likewise when you claim, that "Relatedly, Tenenbaum's defense team has also said that fair use *always* goes to the jury, which is wrong as well."
If he actually said that, then it would be wrong. But that's not what you quoted and its not what you (or I) responded to in this post - so its not relevant to the discussion here. If he did say that, then have the decency to quote him directly rather than putting in words in his mouth so that you can then shoot down the straw-man argument to try and boost your narrative of portraying yourself as the expert and Tenenbaum as the naive fool.
Ben -
ReplyDeleteLet me retract the way I hastily characterized the McCain fair use issue. You are correct on this narrow issue: McCain never suggested that fair use out to be fundamentally interpreted differently for politicians as opposed to others. I was wrong in the way I wrote my comments for suggesting that.
However, he did suggest that Youtube spend more time and resources making a fair use determination for material posted by political campaign as opposed to other people or entities. That notion is still very offensive to many people who feel that everyone ought to be given a fair shake and that their artistic/political/news commentary is just as important as those from politicians - even if it touches on non-political (or strictly entertainment related) matters. It leaves one with the impression that fair use is a tool that benefits the elites, while the speech of others who don't care about politics (but think that their views on non-political subjects is just as important) is given less weight.
The larger point I was making in our debate still stands: Fair use is too flexible a concept to proclaim that there are "instructions" on how to interpret the 4 fair use factors that would automatically compel a particular response as though it were a bright line rule in the law. McCain's attempt to appeal to fair use concepts in the Youtube incident only strengthens this point.
@Justin Levine:
ReplyDeleteNo need to accuse me of "snarkish puffery" or engage in other personal attacks. I merely cited to additional evidence in support of my point. I don't feel I'm under any obligation in a blog comment to exhaustively list every piece of evidence I can muster to bolster my argument. And there's nothing wrong with noting additional points in follow-up comments.
I continue to believe that Tenenbaum's characterization of the four statutory factors as "suggestions" misstates the law. I've been practicing copyright law almost a decade, and I had never heard anyone use that word in connection with the 4 factors until this case.
Lastly, my statement that "Relatedly, Tenenbaum's defense team has also said that fair use *always* goes to the jury, which is wrong as well" is entirely correct. Here is what Debbie Rosenbaum, a member of his legal team, told the National Law Journal: "[W]e look forward to asserting our fair use claim in court — a matter that has always been reserved for the jury."
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431491671&Judge_rejects_students_counterclaims_in_highprofile_downloading_case_&slreturn=1
That statement is flat wrong, as it ignores the fact that fair use is usually decided by the judge, and only in rare cases by a jury.
@Justin Levine 12:52:
ReplyDeleteI appreciate your comment, but I still don't think you get quite right what the McCain campaign asked YouTube to do. Here's the actual language from our letter:
"[W]e believe that it would consume few resources--and provide enormous benefit--for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns."
http://www.eff.org/files/McCain%20YouTube%20copyright%20letter%2010.13.08.pdf
The "at least" was intentional; certainly we had no objection to YouTube conducting that type of review for everyone. But the letter was a piece of legal advocacy *on behalf of the campaign*, to achieve a particular result *for us*: the re-posting of our videos, which had been taken down in response to meritless DMCA notices. Did we want YouTube to pay particular attention to our concerns, in the final weeks of a presidential campaign? Of course, and there's nothing wrong with that; we were lawyers advocating on behalf of our client. Indeed, there is plenty of case law saying that the First Amendment is at its apogee in the case of political speech.
Incidentally, since the campaign I've thought a lot about this issue, and I now think this issue is probably addressed more effectively at the counter-notice stage (as opposed to the takedown notice stage). YouTube gets relatively few counternotices, and I don't think it would present resource-allocation problems for them to conduct fair use review of all videos (from political campaigns and anyone else) once they receive a counternotice.