In a long awaited and lengthy opinion, Judge Gertner has laid out her reasons for a previous ruling that the actions of Joel Tenenbaum, found liable by a jury for copyright infringement to the tune of $675,000 for unauthorized sharing of 30 songs files, were not protected by the fair use defense.
Tenenbaum’s counsel, Harvard Law Professor Charles Nesson, had moved to add the defense at the tail end of the case. The amendment was allowed, and Prof. Nesson mounted a vigorous defense that Tenenbaum’s file sharing was protected by fair use. Judge Gertner ruled pre-trial that fair use would not be presented to the jury. The reasons are set forth in yesterday’s opinion.
As Judge Gertner notes in the memorandum, she did everything she could to allow Tenenbaum to mount a fair use defense, including suggesting arguments tailored to the facts of this case that might have some merit. But counsel for the defendant “mounted a broadside attack,” arguing that fair use should encompass all file sharing for private enjoyment. The Court noted that the defense as raised ran so counter to well established precedent that nothing save for rewriting the copyright laws could have stretched fair use that far.
Scattered throughout the opinion are instances of the court expressing its frustrations with defense counsel. In particular, the opinion:
-takes defense counsel to task for questionable conduct during the case including the late addition of the fair use defense, general missed deadlines, ignored rules, and even illegal recording of counsel and the court without consent.
-notes that in an amicus brief filed before Prof. Nesson represented Tenenbaum, Prof. Nesson remarked that the fair-use arguments are “very weak.”
The opinion retraces the history of the fair use in some detail, including its status as an equitable defense, its presentation to juries, and its application to arguably “non-commercial” uses. The court then walks through the defense and why it does not excuse Tenenbaum’s use of the works in question.
The court winds up the opinion with a brief recitation of hypothetical scenarios where fair use might apply to someone who engaged in unauthorized file sharing, but concludes with its ruling pretrial, that not all file sharing is fair use and summary judgment in favor of the plaintiffs on the defense is appropriate.
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