Monday, July 13, 2009

Labels move for summary judgment on Tenenbaum's fair use defense; 'habitual' p2p user simply wanted 'to get music for free'

Calling Joel Tenenbaum a "long-term, habitual user of peer-to-peer ... networks," the record label plaintiffs late Monday moved for partial summary judgment, asking Judge Nancy Gertner to rule that Tenenbaum's fair use defense is without merit and should not be presented to a jury.
Plaintiffs Motion for Summary Judgment on Fair Use in Sony v. Tenenbaum

The plaintiffs present evidence -- much of it in the form of admissions by Tenenbaum himself -- that the defendant has used multiple p2p networks for nearly 10 years for one simple purpose: "to get music for free." In sum:
No conceivable set of facts exists that would allow Defendant’s unlawful copying and distribution to be considered fair use, and every court to rule on the issue on facts nearly identical to those presented here has rejected any claim of fair use by infringers like Defendant. See A&M Records v. Napster, Inc., 239 F.3d 1004, 1019-29 (9th Cir. 2001) (“Napster users are not fair users”); BMG Music v. Gonzalez, 430 F.3d 888, 891 (7th Cir. 2005) (downloading copyrighted songs cannot be defended as fair use). Indeed, Defendant’s own legal consultants, well known copyleftists, have stated that the concept of fair use does not – and should not– encompass P2P file sharing, and that it is a disservice both to the concept of fair use and to copyright law in general to suggest that it could.

Given the unanimous case law rejecting fair use in the context of this case, the complete lack of any cogent theory or evidence from Defendant to support a fair use defense, and the unequivocal rejection of fair use as a defense in this case by Defendant’s own legal consultants, it is obvious that Defendant does not seek to advance any legitimate notion of fair use at all. Rather, Defendant’s belated fair use theory is nothing but a desperate attempt to present to the jury an argument for ignoring the clear law with respect to infringement and to avoid responsibility for his massive and continuous infringement of Plaintiffs’ copyrighted sound recordings. Because there are no disputed issues of material fact with respect to Defendant’s affirmative defense of fair use, Plaintiffs should be granted judgment on this defense as a matter of law.
Plaintiffs dutifully march through the four fair use factors, citing the case law that without exception has rejected fair use arguments in defense of p2p "sharing." They liberally cite Judge Gertner's own ruling in Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass. 2007), where she rejected a fair use defense on summary judgment, in a case where the fair use argument was (though quite weak), far more plausible than Tenenbaum's. And they repeatedly reference the now-infamous March 2009 email exchange in which a group of prominent scholars on the copyleft, whom Tenenbaum's counsel Charles Nesson had recruited as potential experts, tell him one-after-the-other that fair use provides no defense to Tenenbaum's p2p activities.

The motion also takes on the fair use factors Tenenbaum's has identified outside of the statutory four:
1) Defendant’s state of mind at the time he engaged in the infringing behavior; (2) the music industry did not employ a business model he approved of; (3) the availability of alternatives to P2P in readily accessible form was limited; (4) the music industry benefits from his illegal P2P file sharing; and (5) his emotional ties to the music make if fair.
Argue the plaintiffs:
Here, Defendant’s proposed "fairness" factors must be rejected for at least three reasons. First, where, as here, all four statutory factors weigh heavily against a finding of fair use, a defendant cannot survive summary judgment by asserting other, generalized arguments of fair use. Second, courts have consistently rejected virtually every argument raised by Defendant, and none of Defendant’s arguments serve the purpose of the fair use doctrine or the purpose of copyright law. Indeed, Defendant’s arguments, like his infringement, serve only his own narrow interests in getting his music for free. Third, because there is no legal or factual support for any fair use defense in this case, it is apparent that Defendant’s fair use argument is an improper
attempt at jury nullification.
Plaintiffs close with a plea to Judge Gertner not to allow Nesson to put Tenenbaum's meritless fair use arguments to a jury. These arguments, say the plaintiffs, are nothing more than an attempt at jury nullification. And they are right. Yes, fair use is fact-specific, and there are vast areas of gray within the doctrine. But there is also plenty of black and white, cases where the use is clearly fair or clearly not. Joel Tenenbaum's case does not present a remotely close question on fair use.

So, you may ask, why did the plaintiffs move for summary judgment only on fair use, and not on liability itself? Given the abundant evidence of Tenenbaum's infringement, from Tenenbaum's own admissions to the mountains of forensic evidence, I think they would have had a good shot. But the issue is damages. Had plaintiffs sought to avoid trial altogether, the most they could have sought in damages was the minimum statutory damages of $750 for each of the 30 works they have pursued. See BMG Music v. Gonzalez. If they wanted more, Tenenbaum would have been entitled to a jury trial under Feltner v. Columbia Pictures Television. Such a trial on damages would cover much of the same ground, with the same witnesses, as a trial on liability. So I suppose the plaintiffs decided to stick with their strongest argument -- no fair use -- on summary judgment, expecting that they will win at trial on liability, leaving the proper measure of damages in the jury's hands.

Tenenbaum's opposition is due this Friday, July 17 -- an extremely short time in which to draft a brief opposing summary judgment. Trial is set for Monday, July 27.

Here's the plaintiffs' Statement of Material Facts. And exhibits: Part 1, Part 2, Part 3, and Part 4.


  1. We can see where this is heading. Take out Defendant's primary defense with a summary judgement, and let the jury award another embarrassingly large judgement like in Thomas-Rasset's case. The RIAA declined to mention the amount the Plaintiffs in that case were awarded in their press release. Unfortunately a large award in this case will only further assist those who want to pursue issues of due process and constitutionality of the award in this and similar cases.

  2. Anonymous 6:41... I still don't understand what people want RIAA to do in these cases. There is no "primary defense" in that in this case, the defendant makes no bones about doing the act, and the law is clear that there is no fair use for such acts. As I have posted here before, I am amazed at the high level of professionalism plaintiff's attorneys have shown while having to deal with the various frivolous defenses and discovery violations. And again, keep in mind that in the Thomas case, Plaintiffs didn't once ask for $150K per song--they told the jurors to do what they want. I believe it was the defendant's incorrect tactic of focusing on the potential high number that got the jury as high as it went.

    Frankly, I think a high award here, while it might not be great pr in the short term, would have the opposite effect of what you believe. If 12-person juries consistently unanimously award high amounts as statutory damages, it takes away from the constitutionality and due process arguments (which I think are somewhat bogus anyway) as you will have a consistent range that puts everyone on notice. It also seriously takes away from future defendants' remittur arguments.

  3. I believe I have never seen in over 30 years of practice a more compelling presentation in this particular motion that the attempt to interject a fair use defense is totally frivolous and lacking in merit. The defendant's own words, the actions of his counsel, the public disclosure by counsel of private communications with recognized experts in the field of fair use (all of who resoundly reject the notion that fair use is a defensible argument in this case), etc. all lead me to believe that the defense and his counsel continue to "flog a dead horse".

    What I find particularly dispiriting is that plaintiff's counsel had been put to the task of expending unnecessary time and resources responding to specious "defenses" that in my view serve no useful purpose whatsover in moving this matter forward towards resolution. The proffer of defense "experts" that do not pass even the most liberal interpretation of Daubert. Seriously, and as but one trivial example, an ethnomusicologist trying to somehow suggest that "transformative" can pertain to matters other than a transformation of the work itself.

    With the entry of Mr. Nesson and his law student team into this case, the case has turned into a three-ring circus that seems more bent on scoring PR points than on professionally and competently trying the case. While it would likely have been an unsurmountable task, there are points of law that could and should have been raised. Unfortunately, it seems that the practice of law by the defense team has fallen prey to an apparently irresistable urge by defense counsel to garner and exploit the limelight.

    I remain hopeful that should Judge Gertner ever again request the representation of a defendant in an action such as this she will reflect carefully on who should be approached to do so. And...I remain hopeful that others sitting on the Federal Bench do likewise lest we see a repeat of what has transpired in this case to date.

  4. Speaking as Anon 6:41 in reply to Anon 7:25, I take your points, but to protect and preserve the status quo in terms of statutory damages, it may be safer for the Plaintiffs to pursue an award of damages more in line with the original Thomas damages viz approx 10k per song. It will still have a deterrent effect while keeping the amount further away from due process issues and under the political radar. It would be a nightmare for rights holders if an amplification in bad PR translated into something more.

  5. Ok, unless I am off my rocker, Nesson just filed his strangest motion yet.
    He just filed a motion to waive witness fees for the subpoenas he intends to serve on Cary Sherman and Mitch Glazer (who are both in Washington, DC) to appear at trial. The entire motion is about the waiving of witness fees, yet it misses the most basic of Federal Rule of Civil Procedure: you simply cannot serve a subpoena on a witness more than 100 miles from the place of trial or deposition. There are entire procedures in place in the federal rules (that are used all the time and I have used them many times myself) for exactly what you are supposed to do in this circumstance--you take the deposition of the person in the place where he resides, and then you use the deposition as trial testimony as per Rule 32(a)(4).
    This is another one of those motions where its inconceivable to me that the plaintiffs wouldn't get attorneys' fees for having to waste time defending.

  6. I detest the use of the phrase "copyleftist." It is irresponsible. What does it mean? Are these so-called legal consultants self-avowed copyleftists, or have they been established to believe in something other than copyright? The term has no place in a legal brief any more than do other terms that slander the good names of other good people.

    Let's be clear: Believing in copyright, as I do, and hoping for the modernization (not weakening) of copyright, as I do, does not make me anything like a "copyleftist" and yet I've been inaccurately tarred by that brush several times (and I still don't know what it means or what those who use the term hope it means, other than the false implication that these people called copyleftists are somehow relatively less in favor of copyright than are others).

  7. Jim --

    "Copyleft" is a term that many who work on copyright and anti-piracy issues in the entertainment industry use to refer to the broad legal/social/political movement that seeks opposes strong copyright protection (sometimes called the "free culture" movement). It is meant as a shorthand description -- not an insult. I use it because I it's pithy and descriptive, and I certainly wouldn't if I thought it was a "slander." Professor Nesson, for one, has embraced the term: (There is also a different meaning, referring to a specific type of license.)

    Certainly not all of those on the "copyleft" oppose all copyright or are "anti-copyright." Prof. Lessig, for example, is careful in his books to say that he supports copyright, and only seeks a narrower scope.

    I certainly don't profess to know your views on copyright in any detail, but from what I know of your experience in the music industry and your current efforts with Choruss to create and implement a new business model where copyright plays a significant role, I would *not* consider you to be someone on the copyleft.

  8. Ben: No objection to anything you wrote. I find your writing impeccable, invariably accurate and precise. You've become my source of choice when it comes to these matters and there isn't a day that passes without careful reading of your blog and 140-character bursts.

    The term "copyleft" is imprecise, lacks definition, is highly subjective and inappropriate in its context in the brief (not your commentary). Who is truly copyleft, and what does it mean if they are? We are simply left to wonder, but it would not surprise me if readers are left to draw an inappropriate comparison with "leftists" and conservatives on the right, and in my opinion this confuses the matter.

    Yes, I am a strong supporter of copyright, which is why I want it to keep pace with the times. Proposing change, trying new concepts (even renewing old ideas) and questioning our current state of affairs in the economy of ideas draws charges of "copyleft" from some who wear "copyright" on their sleeve. It will not surprise me if someone claims to have list of "copyleftists" in their pocket and proposes purging them from Hollywood employment, so desperate has become the discourse, so shrill has become the debate.

    Thanks for rising above all that, Ben. Much appreciated.

  9. Jim --

    Thanks for the kind words. I think we can agree that the term is not known or used widely enough that one can assume a judge is familiar with it. It's a fair criticism of the labels' brief that, at the very least, it should have made clear to Judge Gertner exactly what they meant by it.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.