RIAA v Tenenbaum: what might have been
p2pnet news view P2P | RIAA:- “I got my ass kicked” admitted Harvard law professor Charles Nesson to a class full of students.
Quoted in the Harvard Law Review, he was referring to the Joel Tenenbaum vs the RIAA farce, going on the final judgment was “both disappointing and absurdly excessive”.
Tenenbaum was ordered to pay $675,000 for allegedly 30 downloading copyrighted songs.
Absurdly excessive, perhaps, but nothing like the $1.92 million Jammie Thomas Rasset was ordered to find for for 24 songs.
However, “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,” wrote judge Nancy Gertner, who heard the case.
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,” she said.
Advice for the future, no doubt, but as for the case itself, it was a total wipe-out — “all show, and no dough,” as the Los Angeles Times‘ Jon Healey sums it.
And, “The real tragedy here, though, is what might have been, as the judge admits she was receptive to all kinds of limited fair use claims and again slams the record industry’s lawsuit campaign,” says Nate Anderson in Ars Technica.
The ’subject of further briefing’
Recording Industry vs The People’s Ray Beckerman posted yesterday —-
—- the Court has entered judgment.
In addition to the monetary award fixed by the jury, the Court also granted some, but not all, of the injunctive relief requested by the RIAA.
Additionally, the Court set briefing schedules for post-judgment motions, and for motions for fees and sanctions.
The Court also issued a ruling explaining its reasoning for dismissing the fair use defense, which:
(a) indicated that there might be many scenarios under which fair use would be a defense to an RIAA vs. End User p2p file sharing case, and
(b) criticized — at length — the defendant’s lawyer’s behavior.
Decision granting in part, denying in part, plaintiffs’ motion for permanent injunction
Judgment
Order Scheduling Post-Judgment Motions
Order Scheduling Attorneys Fees and Sanctions Motions
Decision explaining ruling striking fair use defense
Since the defendant “admitted liability” there really was no legal issue for the Court to decide other than:
(a) the scope of injunctive relief
(b) the excessiveness of the statutory damages award, and
(c) the constitutionality of the statutory damages award.
As the Court’s ruling indicates, issues (b) and (c) remain open and are expected to be the subject of further briefing.
Additionally, the issues of attorneys’ fees and sanctions are likewise open, and expected to be the subject of further briefing.
Expansive fair use argument
In her “crisp indictment of Tenenbaum’s legal team (which was led by notable copyright expert Charles Nesson from Harvard Law School),” Gertner (right) “said she was prepared to consider a more expansive fair-use defense than other courts had entertained, but the defense blew it,” posts Healey, going onto quote her as per Ray’s hosting of her decision, to wit >>>
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.
Says Anderson in Ars >>>
Also remember that Gertner throughout has been quite a public critic of the music industry’s lawsuit campaign. She continues that criticism in the memo, saying, “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.”
That was the backdrop, but when Nesson and his team stepped up to litigate the issue of fair use, what did they offer to Gertner? “A truly chaotic defense,” she calls it, along with legal papers that “can only be described as perfunctory.”
It was also one that reached much too far. “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.” By striking so broadly at the idea of copyright, Tenenbaum took the matter out of Gertner’s hands. “Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court,” she concluded.
In addition, she singled out Nesson for criticism in a footnote to the memo. “Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings to the Web.” Examples of Nesson’s bad behavior in the case “are legion.”
“And so we’re left wondering what might have been,” anderson says, adding:
“Tenenbaum can still contest the damage award, arguing that it was unconstitutionally excessive (papers on that claim are due in January), but ‘reducing a ridiculous damage award’ is far less important than shoring up robust fair use rights.”
If p2pnet has value for you, help me keep it online. Cheers! And thanks : )
(If you don’t fancy online payments, please email me at p2pnet @ shaw dot ca and I’ll send you my snail-mail address.)
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
ass kicked – ‘I got my ass kicked,’ Charles Nesson admits, December 4, 2009
Harvard Law Review – Nesson says judge sank his piracy defense in RIAA v. Tenenbaum, December, 2009
copyrighted songs – Joel Tenenbaum’s $675,000 playlist, August 8, 2009
ordered to find – Jamie Thomas-Rasset’s $1.92 million playlist, June 19, 2009
Los Angeles Times – An opportunity missed to apply ‘fair use’ to file sharing, December 7, 2009
Ars Technica – How Team Tenenbaum missed a chance to shape P2P fair use law, December 7, 2009
Recording Industry vs The People – Court enters judgment in SONY v Tenenbaum, December 7, 2009
Use free p2pnet newsfeeds for your site. It`s really easy!
Subscribe to p2pnet.net | | rss feed: http://p2pnet.net/p2p.rss | | Mobile – http://p2pnet.net/index-wml.php
Net access blocked by government restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.
December 9th, 2009 at 12:11 am
All that these corporates parasites and their lawyers are going to achieve eventually is to get themselves killed.
December 9th, 2009 at 6:27 am
For balance, I’d suggest you also read the “Threat Level” article here:
http://www.wired.com/threatlevel/2009/12/nesson-2/
It suggests that although Gertner was prepared to allow a more expansive “Fair Use” defence, the fact that Tenenbaum had admitted to the sharing, coupled with the fact that he couldn’t be shown to fit within the scope of the possible fair-use defences suggested by Gertner and other commentators (i.e. space-shifting or downloading music otherwise unavailable online) meant that Nesson’s only possible “fair-use” defence was that ALL music sharing online was “fair use” – and that is what Gertner dismissed.
December 9th, 2009 at 9:09 pm
A RAW DEAL
“By striking so broadly at the idea of copyright, Tenenbaum took the matter out of Gertner’s hands.”
That is not the way the legal system should work.
The fact that the lawyer attacked broadly the idea of copyright should in now way be held against his client.
The judge or the jury of a lawsuit just need to answer the the questions: Was damaged caused and what is a fair sentence considering all circumstance. Clearly Tenenbaum got a raw deal from the very biased judge and jury. Very typical of a screwed up legal system.
In the case Venegas vs Latin American Music the issue of the theft of over 500 songs and the illegal exploitation of those songs and the destruction of the market for those songs, no damages were awarded (other than $16,000 for an alleged copyright infringement by another party that was not in the lawsuit). The songs can be heard and the legal details can be read here: http://gvenegas.com . Another raw deal.
December 10th, 2009 at 8:23 am
At the time Beckerman warned that Nesson’s unorthodox legal strategy was not serving his client well.