Fair use defense thrown out in landmark filesharing case
By John Lister
A man accused of illegal filesharing who argued his behavior was covered by fair use provisions has had his main defense thrown out. It’s a major blow to those campaigning against the record industry.
Joel Tenenbaum stands accused of illegally sharing 30 songs on Kazaa without the copyright owners’ permission. Unlike the case of Jammie Thomas-Rassett, Tenenbaum does not appear to deny sharing the songs. Prosecutors have physical access to his hard drives, making the offenses seemingly simple to prove.
However, Tenenbaum – and more specifically his defense lawyer, Charles Nesson – had hinged their case on the fair use provision of copyright law. Nesson, a senior law professor from Harvard, took on the case in the hope of establishing a major precedent that effectively made all filesharing legal.
Judge Nancy Gertner has issued a summary judgment which throws out this defense without any further debate. She said that there were circumstances were a defendant could at least argue a fair use case, such as when they had downloaded songs, listened to them once and then deleted them. She also suggested people who download songs they already have legal physical copies of could also present a fair use argument.
That’s not flying in this case, however. Gertner ruled that the fair use defense Nesson proposed to argue was “so broad that it would swallow the copyright protections that Congress has created,” adding that, “His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment.”
ArsTechnica notes that at this stage, the only fact which may still be disputed is the actual damage Tenenbaum caused to the record companies through his actions. His lawyers have not presented any hard details on this point in their pre-trial evidence.
At this stage, it’s difficult to see how Tenenbaum can avoid a guilty verdict. His best hope now appears to be a sympathetic jury which decided on damages closer to the $22,500 statutory minimum than the lottery jackpot payouts the record industry is seeking.
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July 29th, 2009
Gertner was absolutely correct in that summary judgment. There is a need for some sort of legal protection for creative artists (authors, musicians, painters, etc.) and it is called copyright law.
For someone to obtain, for example, the entire set of published and any un-published (boot) recordings made and for sale by Pink Floyd or whoever owns the rights to said recordings, and then distribute them for free or at a profit without the rightholder’s permission is a scary thing.
That being said, I’ve purchased 4 copies of Pink Floyd’s DSotM album, two on vinyl, two on CD, the latter of each being Mobile Fidelity editions. I think I should be entitled to DL, for free, another copy to any media I choose. (let’s just say I lost a lot of my music collection due to unfortunate cirumstances beyond my control.)
IOW, the judge has a clue in this copyright case!
July 29th, 2009
Gertner was absolutely correct in that summary judgment. There is a need for some sort of legal protection for creative artists (authors, musicians, painters, etc.) and it is called copyright law.
For someone to obtain, for example, the entire set of published and any un-published (boot) recordings made and for sale by Pink Floyd or whoever owns the rights to said recordings, and then distribute them for free or at a profit without the rightholder’s permission is a scary thing.
That being said, I’ve purchased 4 copies of Pink Floyd’s DSotM album, two on vinyl, two on CD, the latter of each being Mobile Fidelity editions. I think I should be entitled to DL, for free, another copy to any media I choose. (let’s just say I lost a lot of my music collection due to unfortunate circumstances beyond my control.)
IOW, the judge has a clue in this copyright case!
July 29th, 2009
A point I forgot to include was that Judge Gertner noted that the availability of illegal downloads does inevitably deter some customers, but she acknowledged that not all the people who download an album would otherwise have bought it.
If Tenenbaum is convicted, that may be reflected in Gertner’s instructions to the jury regarding the actual losses the music industry suffered (as opposed to the simple “downloads x retail price” formula that prosecutors normally argue.)