Opinion: An opportunity missed to apply ‘fair use’ to file sharing

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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