Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Tuesday, July 28, 2009

Tenenbaum Trial Underway

Ben Sheffner has coverage of the Joel Tenenbaum (P2P copyright infringement) case here at Copyrights & Campaigns blog. The trial began yesterday. Judge Nancy Gertner ruled against allowing the biggest part of attorney (and Harvard Law Prof) Charles Nesson's proposed defense--fair use. See discussion of her order here. What'd she say in her pretrial order? In part:

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.

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