Friday, July 17, 2009

Tenenbaum opposes labels' summary judgment motion on fair use; ignores plaintiffs' arguments, authority, evidence

Arguing that "this prosecution is not fair to him or to his generation," Joel Tenenbaum today filed his opposition to the record label plaintiffs' motion for summary judgment on Tenenbaum's fair use defense.

Opposition to Sumary Judgment Motion Re Fair Use

What to say about a brief that simply fails to address the scores of cases cited in the plaintiffs' brief? Just totally ignores them? That neglects Local Rule 56.1, which mandates the filing of a "concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." That says things like "Plaintiffs have shown no discernible actual effect from Joel’s conduct on Plaintiff's revenues," when the Supreme Court has said the actual standard is whether, if the challenged actions "should become widespread, it would adversely affect the potential market for the copyrighted work"? And while failing to mention plaintiffs' expert's submitted evidence of harm? That makes countless factual assertions without citation to admissible evidence? That invents out of thin air doctrines like an "assumption of risk" fair use factor? That asserts, "[t]he issue of fairness that is raised by this case is a novel one," while failing to acknowledge that there is in fact federal appellate precedent from two circuits rejecting the fair use defense in almost identical circumstances?

Let's just say that if, after graduation, one of Professor Nesson's students turned in such a brief to a partner at his or her law firm, it would be but the first of many, many drafts. And probably the jumping-off point for a very unpleasant conversation.


  1. What's happening, at this point, is that Nesson is using this case as a press-release service. These briefs and motions are not intended to actually do anything in re: Sony v. Tenenbaum; they are instead philosophical musings on the nature of copyright, and of property rights, and of creative works. Nesson knew right from the get-go that Tenenbaum was hosed; right now he's just exploiting the machinery of the trial system to improve the distribution of his message.

  2. Is this the same person who argued before the Supreme Court? Because this brief is absolute rubbish. In opposing summary judgment (where the goal is to show there is some material fact in dispute), spending the intro half of the brief on an issue not due until Monday doesn't strike me as crack litigation.

    Moreover, there's hardly a single case cited in their favor. While I do find some interest in the points regarding the spectrum of commerciality (what does constitute noncommercial copying these days) and the actual registrations at issue (are they really compilations and not individual works?), they get lost in pointless ramblings.

    I know the Judge is being very lenient considering the only reason Nesson is on the case is because of her, but she must be simply appalled at the work product from the defense.


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