A fair-use defense raised by P2P defendant Joel Tenenbaum is ’so ...
A fair-use defense raised by P2P defendant Joel Tenenbaum is “so broad it would swallow the copyright protections that Congress has created,” U.S. District Judge Nancy Gertner ruled Monday in Sony BMG v. Tenenbaum. She granted a motion by…
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the RIAA for partial summary judgment to prevent use of the defense, which aimed to shield anyone downloading through P2P networks for their own “private enjoyment.” A jury shouldn’t consider the defense, because the facts aren’t contested, Gertner said: “Fair use is not a referendum on fairness in the abstract, as the Defendant would have it, but an effort to measure the purpose and effects of his particular use against the incentives for artistic and literary creation” in the Copyright Act. Tenenbaum’s legal team could have argued for “certain circumstances” in which a fair-use defense was “plausible,” such as deleting downloaded MP3s after sampling them. P2P swapping before commercial alternatives arrived and the law was “settled” could also be argued as fair use, and so could sharing in a closed group of friends, Gertner said, “but the Defendant has offered no facts to suggest that he fits within these categories.” Tenenbaum admitted having shared hundreds of songs over the years, “far beyond the infancy of this new technology or any legal uncertainty,” she said. The defense didn’t even back up its assertion that file-sharing hasn’t harmed the market for purchased music, such as with affidavits, expert reports or deposition testimony, Gertner said. “It seems clear that some portion of paying customers would shift to free downloads if this activity were deemed a fair use,” even if there’s not a one-to-one loss. Tenenbaum can make fair-use arguments at trial in connection with the setting of damages, Gertner said.