Judge nixes fair use defense in Tennenbaum filesharing case

In a last-minute knockout punch, delivered just hours before the latest high-profile RIAA case was scheduled to start, Judge Nancy Gertner denied a fair use defense to Joel Tenenbaum, Ars Technica reports.

Tenenbaum had sought to present his fair use theory to the jury but the judge took the issue away from the jury, granting the labels' motion for summary judgment on the issue. Noting that Team Tenenbaum - Harvard Prof. Charles Nesson and a team of students at the Harvard's Berkman Center - "has put no facts into evidence on which the Court could rely; his opposition briefs are not accompanied by any affidavit, expert report, deposition testimony, or other evidence of the kind described by Rule 56(e)," the judge found there were no factual contentions for a jury to decide.

What Tenenbaum's lawyers offered, instead, was a philosophical attack on copyright in the digital age. And the judge - no fan of the RIAA's litigation strategy - was not amused.

[Tenenbaum] 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.

Tenenbaum has admitted to downloading the songs, over an extended period of time. The judge simply couldn't conceive of how his circumstances could possibly fall within fair use. And she pointed out - it's not that hard to imagine facts that would present a good fair use defense.

[F]or 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.' 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.

...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.

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 number of years, far beyond the infancy of this new technology or any legal uncertainty.

Perhaps the Harvard team was more interested in making a broad alternative restatement of copyright law than in parsing Joel's admissions in a way that would have allowed them to preserve some remnant of fair use. Maybe that's what happens when academics waltz into the courtroom?

Ray Beckerman of Recording Industry vs The People calls the defense strategy "regrettable."

It is regrettable that defendant's counsel made no attempt to draw any factual distinctions among the different types of behaviors in which defendant engaged, utilizing peer to peer file sharing software, but instead took a broad all-or-nothing position that the use of Kazaa for noncommercial purposes was totally protected by "fair use." There are interesting, difficult questions regarding fair use, lurking out there, which will just have to await resolution in other cases, where the issues are more properly framed.