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Fair Use Defense Dismissed In SONY V. Tenenbaum
Several readers sent us updates from the Boston courtroom where, mere hours before the start of trial, a federal judge ruled out fair use as a defense. Wired writes that "the outcome is already shaping up to resemble the only other file sharing trial," in which the RIAA got a $1.92M judgement against Jammie Thomas-Rassert. The defendant, Joel Tenenbaum, has already essentially admitted to sharing music files, and the entire defense put together by Harvard Prof. Charles Nesson and his students turned on the question of fair use. The judge wrote that the proposed defense would be "so broad it would swallow the copyright protections that Congress has created." Jury selection is complete and opening arguments will begin tomorrow morning. Here is the Twitter feed organized by Prof. Nesson's law students.
I wonder why judges are throwing out defenses before the defense could even bring out the arguments of their reasoning. Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.
This seems like another bought off or pressured case.
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Man I don't get how people are so polarized about this. Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.
If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.
What I want to know is how Harvard Law thought fair use would apply. This doesn't really speak to their training as laywers. I certainly don't support the RIAA in their war on file sharing, and 1.92M is absurd, but this was a weak defense from the outset. I hope they come up with something better. Its frustrating to watch a fight in which both sides are using only the most inapplicable and irrational arguments available.
Sometimes the Judge needs to set the bar at a different level. Even if it is not in our sides favor. Fair Use Defense is very loose set of rules with a huge gray area, and would really need a higher court to mark such lines. And the Time and effort to prove fair use would be long and laborious and only give a small advantage to the case. We really need to debate more concrete issues. If we loose then we can try for a higher court. Who may be more willing to attempt to draw the fair use line. However if that line is drawn it may not be to our favor as well.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
...don't use their stuff.
Seriously. If you don't like what you're seeing. Don't buy it. Don't share it.
Hell...don't listen to it wherever possible.
There's enough cool music from indies that have no connections whatsoever with RIAA that you can satisfy your musical tastes in most cases without making deals with the devil.
If you do that, they won't have your money.
If you do that, they won't have a leg to stand on to come after you.
Opt.
Out.
You're customers, not consumers- and if you don't like what you're seeing, you need to stop buying. If you're not buying and using, you're consuming, but not paying- which is playing the game wholly by their rules and you will eventually lose.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
If
then maybe the law, written by mortals, is wrong. It's not like the defense goes against the laws of nature and can't possibly be right.
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
Actually judges can (and should) over-rule the law. The judiciary exists as a check on both the executive in the application of the laws as written, and on the legislature in the drafting of laws that are in accord with constitutions and with individual rights.
If the judiciary isn't going to over-ride unconstitutional laws, no one else will. It is arguably the most important function of a judiciary in a free society.
As an aside, one of the more telling exchanges in the recent hearings for Judge Sotomayor was when the new Senator Franken naively asked her whether individuals have a free-speech right to unfiltered internet access. Her response was basically that individuals have no inalienable rights and that the Supreme Court exists to interpret laws as passed by Congress. This is a patently false, legal positivist notion in direct conflict with the US Constitution that has infected the judicial system within the US and has led directly to the recent wholesale approval of human rights violations that we have seen in this country.
Interpreting individual rights in deference to acts of Congress or to claimed executive privileges has neutered the concept of individual freedom and human rights in the US, in cases involving everything from individual property seized by governments for the benefit of private developers, to the war on drugs, gun control, illegal wiretapping and habeas corpus violations of US citizens. We have reached the point that now not only do we have judges ignoring rights enumerated in the Constitution which they are sworn to uphold, but also ordering defendants not to defend themselves on the basis of these rights and denying them due process as well!
The judiciary as an enforcement arm of the sovereign was a notion we as a country should have cast aside with the Declaration of Independence. The fact that we have not is prima facie evidence of a need for the tree of liberty to be again refreshed in this country.
"I assumed blithely that there were no elves out there in the darkness"
In previous copyright infringement cases in the US and abroad things just aren't that simple. American movie studios tried to argue that the VCR was helping people commit copyright infringement. Prior to The Pirate Bay's trial, The Pirate Bay's servers were stolen in what The Pirate Bay maintains was a joint effort of US government (at the behest of the American movie makers) and the Swedish government. This got Swedes riled, as I understand it, because there's no good reason why Swedes should have to satisfy American movie corporations in their copyright regime (should they choose to have a copyright regime at all). The RIAA is not to be trusted in court. Their history includes threatening the wrong people such as the 2003 threat against Penn State's Prof. Usher who, with his team of researchers, innocently recorded a song in celebration of their new telescope. How did they get caught in the RIAA's all-too-blind dragnet? Apparently they dared to store an MP3 file containing the strings "usher" and ".mp3" in the filename on a publicly-accessible FTP server and nobody at RIAA thought to listen to the file before launching into litigation threats. In 2007, the MPAA committed copyright infringement in their GNU/Linux distribution aimed at making university IT personnel spies on behalf of the MPAA. The MPAA famously illicitly copied the documentary "This Movie Not Yet Rated", which was critical of the MPAA on multiple grounds, and tried to pass their illegal copying as though it were acceptable in the process of issuing a rating for the movie.
People are polarized about this issue because they sometimes see the needless legal suffering and hypocrisy brought by well-funded copyright maximalists and they don't want those maximalists defining the contours of copyright law alone.
Digital Citizen
Pure and simple, Nesson has totally screwed over his client in a big way here. I've said it before and I'll say it again - the role of a trial attorney is to defend the client, not to try to make some wild social statement.
Unless he's just using the case to advance an agenda and will pay the judgement out of his own pocket, that is. In which case, fine, Tannembaum is just a proxy for Nesson to have standing to argue in court.
But if he chunks this case and leaves the defendant holding the bag, he's lower than even the lowest bottom-sucker.
Disproportionate statutory damages is the only reasonable defense; as others have pointed out, the RIAA gains ridiculous leverage because merely leaving a song upon eMule subjects you to thousands of dollars in phantom damages. Even if you ARE innocent, the risk/reward ratio allows the record mafia to shake you down simply because no one can risk the damages from losing.
Of course, the other obvious approach is to have Congress rewrite the statute to properly differentiate between a bootlegging operation with thousands of dollars in profit with counterfeit DVDs and some poor schmuck trying to get a few Mp3s.
Step out the front door like a ghost into the fog . . .
This is the only way to end it. Walk away. Just freakin walk the F away. You don't need the Jonas Brothers latest POS, you don't need Brittany Spears latest wtf.. If you do, pay the money and take your beatings and stop whining about stealing the dam stuff and getting caught.
There will never be a law change where you can steal someones work, distribute it to the world and not face repercussions unless it is specifically allowed by the owner.
Maybe a jillion dollars a song is too much to pay for the infraction..ok.. but none-the-less it will always be wrong and there is no other answer.
Get it into your head that as long as you consume this mess you feed these bastards and the system that supports it.
1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.
2. Second of all, whether or not fair use DOES apply is an issue of fact that is properly reserved for a jury to decide.
Either the judge is braindead, or he's setting the defense up for an appeal.
The RIAA's "objection" came in the form of a new pool quietly installed in the judge's backyard, more than likely...
If I may be permitted to misquote Isaac Asimov:
Conspiracy theories are the last refuge of the incompetent.
It really isn't that hard to understand:
Under American law, the geek with a broadband connection doesn't have the right to a free digital download copy of WALL-E.
Nor does he have the right to upload his screener of the Transformers to 15,000 of his closest friends on the P2P nets.
The geek is cheap and he feeds on the thrill - and that is what lands him in court.
Netflix lists 100,000 DVDs and 2,000 Blu-Ray discs.
For about $15 a month he could build a substantial personal collection which would be of interest to no one so long as it remains within his home network.
Mind you, that's still a five fingered discount, and not Fair Use.
Is no-one else staggered by the irony and hypocrisy of Sony using fair usage against Universal, and then it being disallowed when they are the bully? This judge is an idiot, plain and simple.
One of these days I'm going to cut you into little pieces. - PF
One has to wonder, though, about a right you enjoy only for as long as you don't try to use it...
No problem is insoluble in all conceivable circumstances.
Have you actually factored in the interest rates on those $1.92M? Effectively, this sentence is equivalent to labor camp for life, not just 32 years.
cpghost at Cordula's Web.
Because 113 people "near" you (for some definition of "near") have already copied that file. Still, this does not mean that you get 113 copies of the file.