Fair Use Argument Falls Flat in File Sharing Case

Monday saw the memorandum and order regarding the affirmative defense of fair use in the Joel Tenenbaum trial for illegal file-sharing of copyrighted music.  Joel Tenenbaum, the defendant, was sued by various record labels on evidence gathered by RIAA investigator Media Sentry.  They determined that Tenenbaum allegedly shared 30 music files through peer-to-peer service KaZaA.  The trial had been notable up to now because of the actions of defense counsel, Professor Charles Neeson, co-director of the Berkman Center for Internet & Society, located at Harvard University, and some of the theories he presented in defense of his client.  Some of this showed up in Judge Gertner's 41 page opinion.

Neeson, for example, taped conversations with RIAA lawyers without Court consent and placed them on the Internet.  The judge took a dim view of this activity at the time, though Neeson suggested they knew they were being taped.  Some of his actions at trial seemed odd, such as crushing a styrofoam cup to illustrate how albums are broken down into songs and presenting a poster of a Necker Cube, suggesting to the jury that they look at the case from a different perspective.  Neeson also did not deny that Tenenbaum downloaded or shared files.  Even if he did, Tenenbaum admitted later on that he lied in his deposition where he tried to blame the activity on family members or visiting friends.  His parents testifiedthat they warned him that he might be sued over his activities and that their son ignored their warnings.  Neeson also tried to have the trial streamed live over the Internet.  The Judge agreed, only to have the the First Circuit Court of Appeals squash the potential broadcast in a one sentence order.  Broadcast was only available for ceremonial or other special occasions absent a change in the rules by the Judicial Conference (not likely).  Neeson seemed to play more to the court of public opinion than to the legal stance of the copyright laws under which his client appeared.  The RIAA is an oft criticized trade organization for its heavy handed legal tactics.  Neeson's antics were eccentric enough that he actually turned the RIAA into a sympathetic party for some.

Judge Gertner was actually concerned about the types of suits the RIAA was bringing against file sharers and said so on multiple occasions, including in this latest opinion.  She, in fact, got Tenenbaum and Neeson together as a way of making sure he had counsel.  The best legal theories available to the defense regarded the excessiveness of damages.  The jury did find Tenebaum liable for $675,000 for his activities.  Judge Gerter was troubled enough to suggest that Congress should act in light of the kinds of damages that were available in these kinds of cases, but not enough that she overturned the jury's award. 

The theory that was pursued with more vigor, however, was fair use.  Summarizing the argument, Tenenbaum was no different from other people in his position.  Everyone shares music.  That is the expectation of digital natives, that is people born to the age of computers.  Why is this a big deal?  That argument may resonate with some, but as the RIAA pointed out in its filings, there was no legal precedent for that type of argument.  The defense also argued that music was like an attractive nuisance in tort, in that Tenenbaum couldn't resist unprotected music files.  The Judge noted that the copyright laws did not require affirmative steps by copyright holders to protect their files.  Judge Gertner's ultimate statement on the defenses presented is that the defendant's position would essentially wipe out the copyright laws.  She criticized the defense for essentially making up its own rules to justify the conduct of the defendant. 

Judge Gertner, in fact, gave several scenarios where she would have seriously considered a fair use defense.  One was if the activity took place at a time before there were viable legal alternatives to acquire music in digital form.  Another was when copyrighted works were transformed into other artistic representations.  None of that, of course, fit the facts of this case.  The conclusion was that the plaintiffs were granted summary judgment on the issue of fair use.

There is significant coverage of the Tenenbaum trial in the press.  Ars Technica, for example, has running reports on the daily comings and goings on the case available in their archive of stories.  The best way to find them is to run a search on the Ars Technica site for Joel Tenenbaum.  They are actually pretty illuminating. 

It seems the main purpose of this case was to show how unfair it can be to prosecute individuals for pirating songs worth about a dollar apiece and collecting damages well in excess of that amount.  Remember, only this case and the Jammie Thomas case ever went to trial.  Most every court faced with the issue of excessive damages, including this one, suggests that the remedy lies with Congress.  Congress, for its part, seems not moved.  Most recent hearings or legislative initiatives seem to fall in favor of strengthening copyright protections.  There seems to be a disconnect between the academy concerning what ought to be policy and the actual enforcement of current policy embodied in the copyright statutes.  What's good enough for an after faculty meeting chat or a law review article does not necessarily constitute a defense in a court of law.

Judge Gertner's opinion is here.  [MG]