No Surprise: Fair Use Rejected As Tenenbaum Defense

from the let-this-be-over-with-quickly dept

We've been careful to avoid covering most of the insanity around the Joel Tenenbaum trial from the last few months, as it became increasingly clear that the whole thing was a giant mess -- culminating in the plan to try to defend Joel's file sharing as "fair use." Pretty much everyone told the legal team that such a defense would never fly and it was a huge mistake. It's entirely unclear why Charlie Nesson kept pushing it. It should come as no surprise, then, to find out that the judge has rejected a fair use defense. One can hope that Nesson and crew actually have a better defense ready, but with the judge rejecting the planned fair use defense just hours before the trial began, you have to wonder if "Team Tenenbaum" has a real strategy at all. Hopefully it's just been hidden from all of us, because there are significant legal points that can be attacked, but to date Nesson seems to have focused on long shots, rather than the real legal questions at play.

Not only that, but it appears that even Judge Gertner (who originally approached Nesson about representing Tenenbaum, but had to scold him multiple times and threaten sanctions) seems to recognize that if Nesson and Tenenbaum had thought it out, there might actually have been ways to make a fair use claim stick. But, instead they failed to make a compelling case and (as Gertner says): "propose[d] a fair use defense so broad that it would swallow the copyright protections that Congress has created." So what would such a fair use defense entail?
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.' 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 in the late 1990s threw a number of norms into disarray, offering sudden access to a wealth of digitized media and giving the veneer of privacy or anonymity to acts that had public consequences. At the beginning of this period, 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.

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.
As with the Jammie Thomas case, it makes you wonder how things would have been different with better legal counsel. Either way, unless there are any major developments, we're unlikely to talk about the day-to-day events of this trial until a ruling is made.

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  • identicon
    Curious_George, 28 Jul 2009 @ 6:09am


    So do I have to send the Queen of England a check everytime I sing Greensleeves? Why should her family NOT be able to continue to benefit from a song her ancestor wrote 4 houndred years ago . . . property is proprety right?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2009 @ 6:27am

      Re: Greensleeves

      While a lot of us know the absurdity of copyright laws in this age this really isn't the platform you want to use to further your case that copyright needs to be toned down a few notches.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2009 @ 6:52am

    I think Nesson's real goal is to drive the plaintiffs to suicide. He'll probably read some Vogon poetry for his closing argument.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2009 @ 7:57am

    Hang on now, isn't this a sort of legal dream team thing? Isn't this the advanced minds of the future of copyright?

    Rare use of the term "pwn3d" on techdirt.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2009 @ 8:29am


      No...I'm pretty sure that everyone thinks this legal team is a bunch of dreamers with Delusions of Grandeur.

      A lot of us were probably hoping that they would actually pull this off, though.

      reply to this | link to this | view in chronology ]

  • identicon
    PRMan, 28 Jul 2009 @ 10:40am

    At least the judge carved out plausible fair use...

    While the defense is ill-conceived at least the judge did everyone a big favor by outlining strategies that would probably fly as fair use:

    1. Sharing when there is no other way to obtain the material legally (abandonware/ROMs)

    2. Sharing with only a few people(friends & family sharing)

    3. Deleting within 24 hours (sampling)

    4. Downloading something you already own (ease of space/time shifting)

    Not all of these might work out, but it was nice to see a judge open to these ideas as being fair use.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2009 @ 11:35am

      Re: At least the judge carved out plausible fair use...

      All of those examples you list (except maybe #3) pretty much preclude widespread file sharing (aka torrents), particularly for music.

      1, they are rarely abandoned, 2, there is no simple way to limit your friends, 4, there is no way to know the person you are sending already owns it.

      So it brings it down to 3, and since most people don't delete after 24 hours (rather they add more hard drives, write off to shiny discs, and move stuff to thier MP3 players) is pretty much makes 3 a non-starter too.

      End result is that fair use isn't much of a defence against widespread file sharing.

      reply to this | link to this | view in chronology ]

  • icon
    peter (profile), 28 Jul 2009 @ 1:54pm

    Nesson's lawyering

    The saddest part isn't that Nesson made a losing argument but that in doing so he's sorely neglected the compelling arguments he does have. He really isn't being an effective lawyer. Ray Beckerman's criticisms are spot on:

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2009 @ 3:15pm

      Re: Nesson's lawyering

      Damn, he drilled that lawyer a new one, that's for sure. The truth is there are very, very few winnable arguments down this road, and the Thomas case is another piece of caselaw that makes it "this much" harder to win.

      Even the (commenter) suggested "excessive fines" thing is a very long walk through a very dark forest of legal mumbo jumbo for potentially a simple ruling that "this isn't criminal, this is civil, goodbye".

      Me thinks that this guy would be smart to settle and get out alive, the Thomas case should have shown him what can happen, and having a lawyer with an attitude (and a bad understanding of the law) isn't going to get him far.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2009 @ 6:03am

    note to self... fire my lawyer as soon as a Judge offers to work for me...

    reply to this | link to this | view in chronology ]

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