“It’s Not Fair!”
Court Rejects Tenenbaum’s Fair Use Defense to File Sharing

On December 7, 2009, the District of Massachusetts issued a remarkable written opinion elaborating upon its earlier ruling that individual file sharing did not constitute fair use in Sony BMG Music Entm’t v. Tenenbaum, 2009 U.S. Dist. LEXIS 112845.  The case stemmed from Boston University graduate student Joel Tenenbaum’s file-sharing activities, which spanned several years and multiple file-sharing services.           

The opinion stands out in a number of respects, but most starkly for (1) its eagerness to find any basis to rule in Tenenbaum’s favor and (2) its scathing assessment of defense counsel’s performance.  The court was “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,” and did “everything in its power to permit Tenenbaum to make his best case for fair use.”  Courts don’t usually go to such lengths to advance one party’s interests, at least not where the party is represented by counsel.  Here, Tenenbaum was represented both by a private law firm and by a Harvard Law School professor – a team presumably capable of advancing his interests without an assist from the judge.  But this opinion conjures up the image of a judge itching to vault over the bench to argue Tenenbaum’s case for him:

“[T]he court was prepared to consider a more expansive fair use argument than other courts have credited . . . 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.”

Tenenbaum made none of these arguments, however, and the court deplored – in unusually harsh and explicit terms – his counsel’s performance in the case.  Among a litany of other transgressions, the court chastised counsel for litigating the fair use defense “as an afterthought, and literally on the eve of trial,” and characterized the defense as “truly chaotic” and based on “perfunctory” papers.  Indeed, Tenenbaum’s papers opposing summary judgment on fair use were structured skeletally, resembling an outline more than a substantive brief; cited only sparsely to the record and to caselaw; addressed the four traditional fair use factors in cursory fashion while emphasizing arguments drawn from unrelated legal doctrines; and invoked generalized incantations of “fairness” more reminiscent of the playground than the courtroom. 

Possibly the most interesting insight into Tenenbaum’s defense, however, comes from his own attorney’s legal blog.  Following Tenenbaum’s loss at trial, and public criticism of his fair use defense, his attorney, Harvard Law School professor Charles Nesson, solicited feedback in the blogosphere on what alternative defenses commentators felt might have prevailed.  In response to one commentator’s list of potentially successful arguments, Mr. Nesson wrote, “these defenses do not join the fundamental issues.  this [sic] trial was not an exercise in getting joel off the hook.”  The notion that counsel’s job could consist primarily of anything other than exonerating his client should boggle any practicing litigator’s mind.   Presumably, Tenenbaum – now saddled with a $675,000 verdict – might wish that his counsel had been more concerned with getting him “off the hook” than with transporting the fair use doctrine to a galaxy far, far away.

Fair Use Analysis

Despite its apparent desire to find in Tenenbaum’s favor, the court correctly noted that the fair use “analysis is not some open-ended referendum on ‘fairness,’ as [Tenenbaum]  would have it, but an effort to measure the purpose and effects of a particular use against the incentives for literary and artistic creation that drive copyright protections.”  Consistent with mainstream fair use jurisprudence, the court examined each of the four statutory factors and concluded that each one weighed against a finding of fair use.  But the court’s overt predisposition in Tenenbaum’s favor unmistakably influenced its reasoning. 

For instance, the court refused to “label” Tenenbaum’s conduct as commercial because “there is a meaningful difference between personal file sharing and a business strategy that exploits copyrighted works for profit.”  In this respect, the court disagreed with the Ninth Circuit, which found in the Napster case that file sharing was commercial because “repeated and exploitative unauthorized copies were made to save the expense of purchasing authorized copies.”  A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9thCir. 2001).  In contrast, the court felt that Tenenbaum’s conduct fell “somewhere in the middle” of a spectrum of commerciality ranging from “pure, large-scale profit-seeking to uses that advance important public goals. . .” 

Similarly, in its treatment of the portion of each copyrighted work infringed, the court urged that if Tenenbaum had “just sampled individual songs as a prelude to purchasing the full albums on which those songs appeared[,] [t]hat could well present a compelling argument for fair use.”  Tenenbaum admitted, however, that his purpose in downloading songs was not to sample them in anticipation of later purchases, which the court ultimately acknowledged.  The disappointment that results when the facts do not support a cherished theory of the case is familiar to many a litigator.

After finding that each of the four traditional fair use factors weighed against a finding of fair use, the court then addressed the creative and unusual “non-statutory factors” that Tenenbaum advanced.   These included that: (1) the copyright owners assumed the risk of infringement by releasing their works in an environment where file sharing was rampant; (2) the copyright owners aggressively marketed their works while failing to protect them in any meaningful way, essentially creating an attractive nuisance; (3) Tenenbaum was forced to engage in file sharing because only entire albums, not individual songs, were available for legal purchase; (4) it is unfair for parents and universities to bear the costs of policing the file-sharing activity of children and students; and (5) the “injustice of the action” weighed in favor of fair use. 

The court properly rejected each of these arguments, though it viewed some of them with a degree of approval.  For instance, because the Supreme Court has suggested that the unavailability of a work for purchase through normal channels is a proper fair use consideration, the court felt that Tenenbaum was “on firmer ground” in arguing that his conduct was excused because he could only legally buy entire CDs rather than individual songs.  Nonetheless, by August 2004, when Tenenbaum’s file sharing was detected by the plaintiffs, “a commercial market for digital music had fully materialized,” making the “unavailability of paid digital music [] simply not relevant.” 

The opinion concluded by reiterating that the court was “very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written.  It urges – no implores – Congress to amend the statute to reflect the realities of file sharing.”

This opinion – and the verdict that followed it – should strike fear into the hearts of file sharers everywhere.  It is the second staggering jury verdict against an individual file sharer, following the nearly $2 million verdict in Capitol Records v. Thomas-Rasset.  Nonetheless, at least one piece of anecdotal evidence suggests that file sharers are not so easily deterred: overheard in the ticket line at a movie theatre over the holidays, one youth commenting to another, “We can just download it illegally online!”

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