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.

Comments

Before the arguments start?

[guruevi]

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.

Re:Before the arguments start?

[Anonymous Coward]

So happens in Indiana we have a constitutional clause guaranteeing the right to a genuine jury trial, to wit: "the jury shall have the right to determine the law and the facts." A half-jury trial, where law is decided by the judge, and only facts are left to the jury, is an affront to a free man, and no Hoosier would stand for it.

Unfortunately, there's no such guarantee in the Federal constitution (the meaning of a trial "by Jury" was taken for granted in those days), and it's been steadily eroded by morons like you. The difference between the judge and the jury in this matter, and the reason arguing law before the jury is so important, is that judges are in a position to bribed much more readily than jurors. If the law provides no support for the "new exceptions to copyright", the prosecuting attorney should be able to explain that to the jury as well as the judge, right?

Re:Before the arguments start?

[shutdown -p now]

Have you missed the entire Pirate Bay trial fiasco? (Hint: The judge and the people who could throw out the judge, were bought.)

Or maybe, you know, they've actually applied Swedish law as intended. I mean, are you a lawyer in Sweden? Do you know one who did a thorough analysis of the case, with all materials at hand (and not just from hearsay)?

When everyone you disagree with is "bought", you should pause for a moment and think why it start resembling a classic conspiracy theory.

gosh

[wasabii]

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.

Re:gosh

[Darkness404]

Its not the fact that its against the law its the fact that A) these people are convicted for -insane- damages. Ok, how much is a song worth? About $.99 right? But to the RIAA they can sue for -hundreds- and -thousands- for a single song. So what do you think would happen if I stole a CD from Wal-Mart and they found out about it? They would probably charge me a few hundred dollars, perhaps ban me from the store, etc. they wouldn't sue me for many thousand dollars. Wait, but here is the thing, Wal-Mart -bought- the CD wholesale, Wal-Mart paid money for it, for digital copies they don't cost a cent to make so there are no lost profits. B) They are convicted for little to no evidence. It would be like a murder investigation throwing someone in prison because they were on the same street that the murder took place at the time of the murder. That wouldn't fly.

The law states that penalties should not be outrageous, I think anything more than $20-$30 a song is outrageous. The RIAA did not lose much of anything whenever a song is "pirated".

Re:gosh

[iamwahoo2]

It may be about sharing for you, but for me, it is hard to deal with the injustice of the system. I do not believe that you should ask from other what you are unwilling to ask of yourselves, and it pains me to see somebody get financially ruined for copyright infringement, knowing that most of us have been guilty of the same thing. How can this judge make this ruling, knowing that she has probably infringed on copyright at some point in her life and got away with it, and if by some small chance, she never infringed on copyright, then surely someone close to her has. What other law today is broken so oftenyet carries such a large penalty for those whom are caught? Copyright infringement is in a class by itself as the singular most unjust law in the Unites States.

Re:gosh

[Nefarious Wheel]

That's because nobody has tried a car analogy yet.

It's like giving people free rides in your car then being sued by taxi drivers.

Re:gosh

[Opportunist]

And I think that's due to what the GP pointed out: That we've been educated with the ideal that the good person gives. We grew up in an environment with (more or less) "western" ideals, which in turn are heavily influenced by Christian ideals. And no matter whether you believe in some higher being, the moral code set by that religion(s) had a huge influence in our moral code. Don't lie. Don't steal. Don't murder. But also, be cooperative, be helpful, give when you can and make the life of your peers better.

Not giving when you don't have any kind of disadvantage by giving is seen as an atrocity. If you saw a hungry person and you're full but still have food, would you throw the food away instead? If your neighbor's car does not start and you have a spare battery, could you not lend it to him? Our society would call you names if you didn't, calling you a selfish, miserly Scrooge. Scrooge being a perfect cue, we also have a lot of plays and stories revolving around how the greedy, miserly people only achive happyness once they overcome this and become giving, kind philanthropists.

A law that dictates that you must not give despite not losing anything goes against the moral code we were raised by. You have something that someone else wants, and you can multiply it easily and make him happy. Yet by doing so you're not the good person that you were always told you were when you gave. You'd be a bad person that breaks the law.

The problem with the law isn't so much that it is unjust. The problem is that we feel that it's wrong. It goes against anything we feel morally inclined to do. It's like being told that you must not give a thirsty person water when all you had to do is turn on the faucet.

Bitching and moaning.

[jellomizer]

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.

There's an answer to this...

[Svartalf]

...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.

Judges over-ruling law...

[benjamindees]

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.

Re:Judges over-ruling law...

[zippthorne]

I was going to mod you up, but then I remembered the nutrient that the tree of liberty thrives upon and became depressed.

Polarization comes from attacking one's rights

[jbn-o]

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.

A foolish defense

[Ammin]

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.

Re:Maybe the law is wrong then

[Kjella]

Yes, it is. But unless it's against the constitution or some other fundamental rights or is very unreasonable to Congress' intention I don't see how it is the judge's place to change it. Every time I see something about jury nullification or activist judges I'm thinking that's because the US has so royally screwed up the parliamentary system. It's one to nine judges. There's twelve jurors. They're not supposed to override hundreds of millions voting in representatives that again voting in laws, not unless it's really really serious. You don't fix a broken democracy by creating a vigilante oligarchy of judges or killing consistency and fairness by jury nullification. How about giving people a better choice than a coin flip? I can promise you that it works, once they parties to look out both to the left and the right politicians can't afford to make nearly as many unpopular decisions or ignore the public. You might even see the return of real democratic and republican parties, not the parody of themselves that most end up as after a while. Of course, the only ones that could change that are those with everything to lose, now that's what is truly without checks and balances...

The stupid and the lazy

[westlake]

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.

Re:The stupid and the lazy

[mcgrew]

If I may be permitted to misquote Isaac Asimov: Conspiracy theories are the last refuge of the incompetent.

That's one hell of a misquote, and is entirely incorrect. Of course many conspiracy theories are bogus, but there are more than enough to put the lie to your epigram. I guess you're not old enough (or aware enough) to remember Watergate? Or Enron? Or George Ryan? Not that I believe this particular conspiracy theory, but if this was an elected judge rather than an appointed one, it may be possible.

The correct Asimov quote has Salvor Hardin saying "violence is the last refuge of the incompetent". Lying, twisted facts, and ignoring reality must come in as next to last.

If copyright law wasn't so badly bent and twisted, there would be few pirates.

Sony is who put fair usage into precedence!

[P0ltergeist333]

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.