Monday, July 27, 2009

Court: No fair use for Tenenbaum; huge blow to defense; proposed defense 'would swallow the copyright protections that Congress has created'

In a devastating blow to Joel Tenenbaum's trial prospects handed down only hours before the start of trial, Judge Nancy Gertner at 1:37 a.m. this morning issued an order granting the record label plaintiffs' motion for partial summary judgment on his fair use defense. Fair use is now completely gone from the case, and with it Tenenbaum's primary defense to the labels' claims that he downloaded and "shared" 30 songs. While the court suggests in its order that some of the evidence related to fair use may still come in to mitigate damages, the jury will not be permitted to consider fair use itself.

Here's Judge Gertner's order, which soundly rejects the defense and states that she will issue a full opinion later:
Judge Nancy Gertner: Electronic ORDER entered granting [871] Motion for Partial Summary Judgment on Defendant's Fair Use Defense: The Plaintiffs' Motion for Partial Summary Judgment [871] is GRANTED, with a full opinion to follow. Defendant Tenenbaum has asserted a fair use defense to the allegations of copyright infringement in this case, a question on which the Plaintiffs seek summary judgment. At summary judgment, a court considers whether sufficient facts have been established to warrant a decision as a matter of law. If material facts are in genuine dispute, the question must go to a jury; if they are not, the Court must determine the legal consequences of the uncontested facts. The Seventh Amendment does not guarantee the right to a jury trial on every issue, only those that turn on reasonably disputed facts. See Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006). The Defendant has the burden of identifying the disputed facts, see Fed. R. Civ. P. 56(c), (e), a burden which "requires hard proof rather than spongy rhetoric. Kearney v. Town of Wareham, 316 F.3d 18, 22 (1st Cir. 2002). Tenenbaum has not met that burden. He proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment. See Acuff-Rose, 510 U.S. at 584 ("[T]he mere fact that a use is not for profit does not insulate it from a finding of infringement."). Likewise, his demand for a jury determination on this issue appears all but standardless; "fair use" would, in effect, be any use whatsoever that a jury deemed fair. In the end, fair use is not a referendum on fairness in the abstract, as the Defendant would have it, but an effort to measure the purpose and effects of his particular use against the incentives for artistic and literary creation that Congress established in the Copyright Act. See also Const.Art. I, Sec. 8, cl. 8. Tenenbaum makes no effort to fit his alleged file-sharing into this framework, no claim of a transformative use or public benefit sufficient to justify an exception to copyright protections. Sony Corp., 464 U.S. at 429-30. To be sure, this Court can envision certain circumstances in which a defendant sued for file-sharing could assert a plausible fair use defense.Indeed, an amicus brief previously filed in this consolidated action by the Berkman Center at the Harvard Law School (on which Defendant's counsel was a signatory) outlined some of those circumstances -- for example, the defendant who "deleted the MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased." See Berkman Center Br. at 37 (document # 177-3). The Court can also envision a fair use defense for a defendant who shared files during a period of time before the law concerning file-sharing was clear and paid outlets were readily available. The advent of the internet inthe late 1990s threw a number of norms into disarray, offering suddenaccess to a wealth of digitized media and giving the veneer of privacy oranonymity to acts that had public consequences. At the beginning of thisperiod, both law and technology were unsettled. A defendant who shared files online during this interregnum but later shifted to paid outlets once the law became clear and authorized sources available would present a strong case for fair use. It might matter, too, who the defendant shared files with -- his friends, or the world -- as well as how many copyrighted works, and for how long. See Sony Corp. v. Universal City Studios, Inc.,464 U.S. 417, 451 n.34 (1984). But the Defendant has offered no facts to suggest that he fits within these categories. He is accused of sharing hundreds of songs over a numberof years, far beyond the infancy of this new technology or any legal uncertainty. And in his summary judgment opposition, he has contested few of the facts offered by the Plaintiffs in support of their motion. See Pl. Statement of Undisputed Facts (document # 74); Opp. to S.J. at 5-9 (document # 889). On the face of the summary judgment record -- the only record before the Court at this time -- the following details do not appear to be in genuine dispute: (1) the main purpose of Tenenbaum' s file-sharing was his own private enjoyment and that of his friends, not profit-making; (2) he downloaded entire songs, but not entire albums of music; (3) he did not transform the 30 works at issue in the sense that he added "something new, with a further purpose or a different character," Acuff-Rose, 510 U.S. at 579; (4) his file-sharing spanned more than four years and several different software platforms, both before and after this activity was detected in August 2004; and (5) at that time, his file-sharing software made more than 800 songs available to other KazaA users to download. See Pl. Statement of Undisputed Facts at 1-4, 6. The only fair use factor on which the Defendant raises a serious factual challenge is the effect of his file-sharing on the potential market for or value of the copyrighted works, see 17 U.S.C. 107(4), in which he argues that file-sharing has not diminished the record companies' revenues nor curtailed overall artistic creation. But here again, Tenenbaum has put no facts into evidence on which the Court could rely; his opposition briefsare not accompanied by any affidavit, expert report, deposition testimony,or other evidence of the kind described by Rule 56(e). Even more, the Court is bound to look at the market for the specific works identified by Plaintiffs and as to this market, a court must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant... would result in a substantially adverse impact on thepotential market for the original." Campbell v. Acuff-Rose Music, Inc., 510U.S. 569, 590 (1994) (quoting Nimmer ? 13.05[A][4]). Plaintiffs have argued that continuous, high-volume file-sharing -- offering exact duplicates to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works. The Defendant has offered no facts to the contrary. While the Court recognizes that not every unauthorized download would represent a lost sale, it seems clear that some portion of paying consumers would shift to free downloads if this activity were deemed a fair use. Based on this finding, the private purpose of this use, the substantiality and lack of transformation, and those additional factors the Court is entitled to consider, the Court holds that Tenenbaum's alleged infringement was not a fair use. See Hustler Magazine, Inc. v.Moral Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986); A&M Records, Inc.v. Napster, Inc., 239 F.3d 1004, 1012-19 (2001). Accordingly, thePlaintiffs' Motion for Partial Summary Judgment on fair use is GRANTED. Afull opinion by the Court shall follow. Finally, to the extent that the Defendant's fair use arguments are also relevant to any damages determination under 17 U.S.C. 504(c), he shall have the opportunity to present them to the jury at trial. (Gertner, Nancy)
Trial starts at 9:00 a.m. today.


  1. First rate coverage, Ben, and I also continue to be impressed with Judge Gertner's even hand. She bends over backwards for the defendant and his counsel while keeping a strict eye on the law and its requirements. So far, she's provided a high quality administration to the remarkable (and remarkably odd) pre-trial jockeying.

    The recording industry is to be lauded for their intelligent and determined use of the tools with which they have to work, but I fault them (sympathetically) in one key area, the court of public opinion.

    Yellow journalistic p2p high-fiveing fanboi sites have successfully fostered a self-righteous blind-eye-to-the-facts steal-with-pride culture that should have been gently and reasonably dismantled these past ten years. Artists deserved better representation in this mess, and should have spoken out for themselves in clearer ways. A true and personal accounting of the very real damages done to regular working folks in the affected industries, updated regularly with a plaintive tone of concern, might have gone a long way towards gathering real sympathy for the losses to the little guy.

    As it is, each victory has a pyrrhic whiff that gathers legal precedent while it leaks cultural support.

  2. So, again the question will become (putting his past actions aside): is Professor Nesson hurting his client by not settling immediately? As this is now a trial on damages, even if the jury decided to give the bare minimum, the damages on 30 songs would be $22,500, much more than any settlement offer the labels have made. So, if you absolutely know that you will be on the hook for more than the settlement offer (and any appeal here is abundantly weak), not advising to take it seems like an action directly against your client's interest.

  3. Mr. Sheffner,

    Once the trial is over you may wish to traipse over to Doug Lichtman's IP Colloquium and listen to his most recent presentation involving the "Hope" poster. I mention this in part because the presentation contains a very thoughtful exchange between Mark Lemley and Doub Lichtman concerning the give and take between the first and fourth provisions of the "fair use" statute. In many regards the points raised in the presentation by Doug Lichtman reflect the very points raised by Judge Gertner in her above ruling.

  4. Anon @5:29AM: "As it is, each victory has a pyrrhic whiff that gathers legal precedent while it leaks cultural support."

    Agree completely with that succinct summary. The recording industry should also show that artists are being compensated by proceeds collected from their enforcement campaign to further bolster their position.

  5. Reading your twitter updates. I clerked for a federal district court, and if a lawyer ever asked a jury about his attire or whether they thought marijuana should be legalized, it would be the last question he asked as a free man. He would be put in contempt immediately. Please put this one into context because I can't imagine that Judge Gertner is allowing total free reign on voir dire no matter how unrelated to the case?

    By the way...if I'm plaintiff's attorney, my opening statement is all about focusing the jury on this case and telling them to ignore the circus. Case isn't about defendants' lawyers' turtleneck, or if pot is legal. The case is about whether Joel Tenenbaum is liable for the infringement, which he has admitted doing and which he has admitted he knew was illegal at the time, and the amount in the statutory range that should be set as damages.

  6. I believe that the appropriate response is a hearty "Oh snap, son!"

  7. Are you sure you don't mean the order *roundly* rejects the defense?

  8. I can see three issues here:

    1 - guilty of infringement or not. The defendant has admitted guilt and wilful abuse, and in other cases where there IS guilt it would be smart to settle and not try to BS your way out because when there IS evidence the RIAA machinery works well. However, this must be established beyond reasonable doubt. Mediasentry is IMHO not "beyond reasonable doubt", and the fishing expeditions the RIAA mounts (the John Doe path where the case is dropped when they have the details) is abuse of process. Those are all issues in need of correction, but moot in this specific case.

    2 - where there is infringement, the question of penalties is important - what the RIAA is asking is frankly ridiculous, and this must indeed be addressed. Especially innocent infringement (not being aware of what a program does) should not result in a destroyed life.

    3 - The law is the law and although it is sometimes refined in law, it is never CHANGED in court. Neelson's grandstanding is trying to achieve that and he is in the process victimising his client. That's not a viable defence. You could get certain aspects of the case thrown out, but as the defendant has admitted guilt (probably under the weight of evidence) all bets are off re. conviction, you're now in damage control mode. Maybe I can't quite see the strategy here, but I can't see Neelson in damage control mode. I fear Mr Neelson needs to reconsider his approach PDQ in this SPECIFIC case. There will be enough opportunities to do grandstanding on behalf of innocent victims - it is not appropriate in this case and is likely to antagonise the judge.


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