Sunday, August 2, 2009

The Tenenbaum case Crystal Ball Award goes to...

It's a tie:

Harvard Law School professor Terry Fisher:
I fear that failure to address the holdings (or dicta) of those [fair use] decisions will give rise to a directed verdict or summary judgment against you — and you will never get a chance to make your case to the jury.
And Harvard law student and Joel Tenenbaum defense team member Ray Bilderbeck:
[T]he very novel [fair use] argument that we intend to raise at trial - an argument which has no real basis in case law or moderate academic scholarship - is a blunder that could have very serious consequences.
Both quotations are from the infamous March 29, 2009 email chain in which Tenenbaum's potential experts warned his counsel Charles Nesson that the fair use defense was a loser. Of course, Judge Nancy Gertner did grant summary judgment for the plaintiffs on Tenenbaum's fair use defense, and then directed a verdict in plaintiffs' favor on liability. The jury returned a verdict of $675,000. That, we can all agree, is a "very serious consequence[]."


  1. It just goes to show you there's a bell curve in everything, doesn't it? Even when the mean is a couple deviants shy of a fair use.

  2. I'd be more interested in a mise-en-scène of anybody who said, more or less, 'Well the RIAA is going to get screwed now that _Harvard_ people are involved...'

  3. @Anonymous 4:11:

    You mean like this?

    "Big Guns Come Out In Effort To Show RIAA's Lawsuits Are Unconstitutional"

  4. Yes, I recall the almost gleeful tone that "now the RIAA is gonna get it". Too bad they did not take heed of comments by one or more ACs on that thread.

  5. It should be noted, Ben, that the question of the constitutionality of 17 U.S.C. 504(c)[(2), pursuant to the jury's findings] has never been fully briefed, due to its unripeness.

    However the trial may have been conducted, that issue is now clearly up for discussion. And I think reasonable people can more easily differ on the justness of a $22,500 damage award — for a nominal loss to the recording companies of $0.99, per the defendant's assertions — than they can on whether or not what Joel did broke the law as it is currently written.

    I think the case may be entering its most interesting legal phase, which addresses the elephant in the room in all RIAA-related litigation: how the damages the recording companies claim by statute might relate to actual damages they have suffered.

    Do you have any predictions about this to share with the world? You should get on the record early!

  6. I'll go on record because this one is easy. If this case even gets appealed, the judgment will be upheld. Why? Under a due process attack on 504's constitutionality (which is the only way they could proceed), it gets reviewed under a rational basis standard because DP only provides minimal protection for purely economic rights. Given the deference afforded to Congressional decisionmaking, the court will say that Congress is in the best position to know what types of damages are appropriate, and given that Congress has not exempted non-commercial infringers from the statutory damage regime in the 33 years since the 1976 amendment, it's clear that they intended it to apply to everyone. Therefore, because there is a rational relation between protecting copyrights and the incentive to create (a core constitutional value) and the deterrence of the infringement of those rights through statutory damages, judgment affirmed.


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