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An opportunity missed to apply 'fair use' to file sharing

Joel Tenenbaum set out to become the standard-bearer for people who fight back against Recording Industry Assn. of America lawsuits, but he has come to symbolize fighting back the wrong way. After he admitted on the stand to downloading and sharing 30 songs -- contrary to what he'd claimed in a deposition -- a federal jury found the Boston University graduate liable in August for copyright infringement and ordered him to pay the labels $675,000. Today, the U.S. District Court judge who presided over the case, Nancy Gertner, issued a formal ruling explaining why she had rejected Tenenbaum's "fair use" defense. In a crisp indictment of Tenenbaum's legal team (which was led by notable copyright expert Charles Nesson from Harvard Law School), Gertner said she was prepared to consider a more expansive fair-use defense than other courts had entertained, but the defense blew it.

From her decision (courtesy of attorney Ray Beckerman's blog):

The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenenbaum to make his best case for fair use. ...

As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited -- perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense.

But the defendant would have none of it. Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent. ... In his view, a defendant just needs to show that he did not make money from the files he downloaded or distributed -- i.e., that his use was “non-commercial” -- in order to put his fair use defense before a jury. And every non-commercial use, to him, is presumptively fair. Beyond that threshold, the matter belongs entirely to the jury, which is entitled to consider any and all factors touching on its innate sense of fairness -- nothing more and nothing less.

More important, perhaps, Gertner wrote that Tenenbaum's team didn't provide evidence or precedents to back up its position. In other words, it was all show, no dough. Hence her decision to grant the labels' motion to throw out Tenenbaum's defense before the case reached the jury.

Gertner didn't grant the Recording Industry Assn. of America everything it sought; although she ordered Tenenbaum not to infringe any more copyrights, she refused on free-speech grounds to bar him from promoting file sharing. She also said that a fair-use defense may very well apply to some file-sharers -- "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,'" as Harvard's Berkman Center for Internet & Society (which Nesson founded) has argued. But she added, "Tenenbaum is not such a defendant."

Tenenbaum is appealing, so he may yet shake off the mantle of futility.

-- Jon Healey


Comments () | Archives (16)

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Foolish... I download plenty of files, but mainly its just to preview things. Ever since stores stopped accepting returns for various forms of media, I try to make sure that whatever I buy is going to be something I want. This helps ensure that I dont end up wasting my hard earned cash on junk. Sadly, there is no rating system in place for movies and music that will let me know what I want to see or hear. I share the files im downloading while im in the process of downloading them. Theyre not complete at that point, and I dont even know if the data is legitametly what it claims to be. Once I find out what it is, and wether or not I like it, I stop sharing it, and delete it. If I liked it, I go buy it. That simple.

Other times however, I will download music to replace a CD/DVD that has become damaged to the point where it no longer plays properly, or in the case of a recent house fire, destroyed. Just because my house burned down, does not mean I should be further penalised by having to buy all my old stuff back.

Mitchell Young

You've got to find a way to work S. Palin into these intellectual property rights posts. Maybe when 'Going Rogue' comes out as an audio book. Otherwise, the topic just doesn't drive traffic.

Seriously though, the problem is that the marginal cost of production of that one extra copy of song X, film Y, book Z is virtually zero. And in a free market, marginal cost is the market price. The record companies can try to make an example out of a few people, pour encorager les autres. But with technology and the relative ease of hiding tracks, they face an uphill battle.


Granting fair share use to file sharing would eliminate copyright law overnight.

There are legal and cheap ways to buy digital music. Why defend cheapskates who think that they can skirt the law?

Jon Healey

@Mitchell -- Nice analysis of the market realities.

@Anonymous -- Umm, that isn't what the judge was proposing. She was talking about exploring whether *some* unauthorized downloads might fall under the fair-use rubric, not Tenenbaum's garden-variety, I'm-entitled-to-free-music downloading. Personally, I'm intrigued by the potential space-shifting exception, and I don't see that as ruinous to copyright industries -- depending on how it's done, of course.

Mitchell Young

How 'bout an

"My housemate/ex-significant other made off with my CD" exception?

"I left the cassette in my old junker when I donated it to charity" exception?

"This guy has been dead for a decade, he doesn't need the royalties" exception?

"I bought this on vinyl as a kid and I want a digital copy" exception? (for those of us of a certain age)

"This was in my parents' album collection" exception? (especially applicable to Gen X and Y-ers)


$675,000 fine for downloading 30 songs? How can this be justice. This is just the recording industry conducting a public hanging to set an example. Sort of like the Nazis use to do in towns they captured in WWII.


@JR They were really GOOD songs!

Ian Ransome

I am not an expert in the US constitution or its amendments but perhaps someone could answer this ?. The 8th amendment says something along the lines of:-

The government may not impose excessive bail, excessive fines, or cruel and unusual punishments.

Now by my reckoning $22,500 per song seems rather excessive especially in light of the fact that it is not technically theft by the dictionary definition (or I believe the UK or European legal definition either). I know how I would be tackling this if I were the defendant. If this persons constitutional rights have not been violated, then I don't know who would qualify. I don't agree with not paying for downloads of music. If we didn't have laws then where would we be....... ?. What I object to is the disgraceful way the music and film industries are behaving, as if they are the only ones allowed to rip people off and get away with it. The artists should get into the distribution business direct to the consumer and cut out the greedy middlemen and their army of lawyers and hangers on.


This is the ONLY industry that seems to think that it can save itself from it's own lack of foresight by suing it's customers. They don't WANT to move forward and join the rest of the world in using the net for their business, they WANT things to stay EXACTLY the same.

But that is nothing new for the industry. When records first came out, they tried to pass laws to make recording music illegal, because who would want live musicians if they could just play a record? And when RADIO came out, they tried to make it illegal to play music there, because who would buy records if they could just turn on the radio? And when the cassette came out, they tried to make them illegal, too, because who would buy a record if they could just tape someone else's, and btw, THEY were selling cassettes, so YOU shouldn't be able to make your own version. And the movie industry did the same thing when VCRs came out. Who would go see a movie if they could just tape it off of tv? The industry actually DID kill off DAT, because by then they owned congress, and got it through the heads of the idiots there that there was NO reason to have one other than to tape CDs.

Records were another NEW market for those making music. Radio was an advertisement for those same people to sell those records. Cassettes allowed those who already had bought the album to record it for use in their cars. Movie rentals went sky high when VCRs were commonplace, so yet another HUGE new market. And rather than making ANY money on DATs, ther are NO DATS out there, to be bought or sold. And so a market is LOST that could be quite lucrative.

And now the companies themselves in Canada are being sued for billions because THEY haven't paid their artists for all kinds of recordings that they made and sold. So why should I feel ANYTHING for the industry that I make my living in? It's not the companies that I have ANY respect for. Especially for suing their customers. That is a sure sign of a complete lack of vision by those in the industry. they should be looking at this technology and figure out some way to make it work. You don't sue people for YOUR OWN lack of foresight.

NO sympathy for the industry, and that is coming from a professional musician, one who has been embarrassed by this for DECADES.


Ironically, the music industry has admitted to copying and reselling *300,000* songs in compilation CD's without obtaining permission, and that is just in Canada. Tennebaum's sharing was noncommercial, whereas the music industry was truly stealing the music, and reselling it for profit. Now who is the real pirate?


>> Hence her decision to grant the labels' motion to throw out Tenenbaum's defense before the case reached the jury.

Did the legal team make reference to the US Constitution and argue that at least some of those copyright terms should have expired if we wish "to promote the progress of science and useful arts?"

I think a better case can be made to abolish or to significantly roll back the rights taken from inventors and individuals at large and hoarded into many necessarily broad patents (and into whole classes of patents) than can be made to abolish copyrights; however, copyright term duration (life of author plus numerous decades) is currently ridiculous if we wish to promote the progress of science and useful arts.

There are many alternatives to monopolies. Monopolies are to be avoided as they generally affect many other inventors/artists negatively. They also create artificial scarcity. The government can even get involved with tax breaks and grants/prizes if need be (though there are free market ways to make money off works).

We should not justify monopolies if there are motivations for creating music and if its possible to make a profit.. or the monopolies should at least be very short (1 to 3 years tends to be when a significant concentration of profits is derived from a particular work).

Humans by nature like to create things and will when the costs to do so are low.

Collaboration leads to more quality goods and should be rewarded.

The world is changing and costs for the industry and for artists have gone done tremendously. Meanwhile the costs for collaborating and creating works has gone down thanks to inexpensive Internet, computing, and sophisticated free (open source) software.

The defendant should have argued over the improperness of the size of the penalties written into the law [punishment does not fit the crime].

Has this decision been appealed to a higher court or can it be re-argued?

The music cartel should be attacked for their bad behavior (perhaps on antitrust grounds).

I hope the next victim goes at the plaintiff and at the law a little more aggressively.


One way to adjust copyright law is to degrade the "monopoly" down so that it completely phases out after a certain number of years where that number is something like 5.

What is considered a derivative works should also be more limited. Though this definition could be a function of time, eg, a limited "fair use" would be allowed in the first year, but rights would accrue in following years leading up to the last year prior to the copyright term expiring, at which time "fair use" would include the most number of rights.

Also, in an effort to promote the progress of science and useful arts, the term on the monopoly might depend on what kinds of revenues were realized in relation to a particular work. This way, fantastically popular works can be phased out earlier (eg, 2 or 3 years) because the profits were large already in order to allow other artists to be able to contribute on top of these works quicker (certainly before they die). Additionally, such a system would be fair to those "taking risks" but coming up with less popular works since these copyright terms would last longer (eg, 7 years).

We note that the monopolies, if used, should serve as a handicap to help out if the free market system makes something too difficult to be achieved. After a limited term, there continue to be ways to make money of these same works (improvisation, concert performances, branding deals). You don't want to hurt comtemporary artists that could leverage each other's works. [Clearly, Disney is working off a very bad business model if they need a hundred years to make a reasonable profit off Mickey and the gang.]

A lot of people against (at least certain forms of) patents are not against copyrights, or at least not against copyrights with reasonable time periods of monopoly. Patents can be much more detrimental to society (eg, because they are by definition very broad and don't allow for an independent inventor defense). This is especially true for things like business method patents and software patents. See http://www.againstmonopoly.org/index.php?perm=593056000000001904 and http://www.againstmonopoly.org/index.php?perm=593056000000001981 and http://www.againstmonopoly.org/index.php?perm=593056000000001949


What a hideous country if I'm reading that a judge didn't allow the jury to even hear the defense. And it calls itself free... and the judge prides itself on being lenient here... so out of contact with moral reality, so drowning in its own legal one


How many FBI and other 'police' force people were investigating downloads for private interest companies on Sept 11 2001 ? If the answer is even 1 it tells you how STUPID we are as a country doesnt it?


Let's remember that Democrat Jack Valente and his army of lobbiests pushed this monstrous bill through Congress, whose members took their blood money and voted for the bill.


Mitchell Young, you need a bit more education in business.

"And in a free market, marginal cost is the market price." No, in a free market, the price is what the market will bear. The price is in no way intrinsically linked to costs. Intellectual property, from paintings, to music to enterprise software is priced on the perceived value to the customer. Guess what? If you don't like the price, don't buy the product. Not liking the price doesn't entitle you to steal.



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