Charles R. Nesson, a law professor at Harvard University, knew he was going to have a rough day before he got dressed to go to court.
Mr. Nesson is representing Joel Tenenbaum, a Boston University graduate student, who is being sued by Sony BMG Music Entertainment for up to $4.5-million for illegally downloading music. Mr. Nesson had planned to argue in front of a jury that the 30 songs his client had downloaded would fall under “fair use,” since Mr. Tenenbaum downloaded them for personal use.
Although the Recording Industry Association of America had asked a judge to rule as to whether Mr. Nesson could use “fair use” as a defense two weeks ago, the judge waited until hours before the trial to make her decision, which was in the recording industry’s favor.
“He proposes a fair-use defense so broad that it would swallow the copyright protections that Congress has created,” U.S. District Judge Nancy Gertner wrote of Mr. Nesson. She continued by calling Mr. Nesson’s request for a jury to determine the issue of fair use to be “standardless,” saying “the Seventh Amendment does not guarantee the right to a jury trial on every issue, only those that turn on reasonably disputed facts.”
This is not the first time in the trial that the judge has ruled against Mr. Nesson. Earlier this month, she threatened him with sanctions for defying a previous court order that barred him from him posting recordings from court proceedings online. Recordings were available on the Web site of Harvard University’s Berkman Center for Internet and Society, which Mr. Nesson founded. Mr. Nesson had unsuccessfully attempted to have the trial broadcast online. In April the judge had also expressed her displeasure that Mr. Nesson’s students were working alongside him as Mr. Tenenbaum’s legal team.
This morning Mr. Nesson posted about his frustration over the judge’s decision on his Twitter account. “Wham, at 1:37 a.m. of the morning of trial, the judge takes the issue of fairness away,” he wrote. “It just can't be that what joel did was fair.”
The blog Ars Technica predicts the trial will be over within the week, as the judge had previously implied to be her goal.
A Twitter feed for Mr. Tenenbaum’s legal team is being updated throughout the trial. According to the page, jurors are still being selected, and opening arguments should begin today.
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5 Responses to ‘Fair Use’ Claim Tossed by U.S. Judge in Illegal-Downloading Case
hdhale - July 28, 2009 at 2:23 pm
Mr. Tenenbaum should consider himself railroaded at this stage. That’s pretty much how the RIAA operates in any event–I’ll not characterize the judge’s behavior except that I hope that she is well paid. Doubtless the RIAA will not collect anything like the moneies requested even if they are awarded it and there is no “message” to be gained from the foregone conclusion of a verdict except that perhaps mp3 file sharing online with friends is preferable to mp3 file sharing online with strangers.
I am however left wondering at what point the recording industry figures out that every single one of these cases costs them far more than the damage awards they actually collect in terms of bad publicity and additional lost revenue? At their current rate of progress, it will likely be the day after many of the major record labels go under due to poor sales….
11272784 - July 28, 2009 at 3:51 pm
I’m no fan of the RIAA – I consider their tactics to be completely reprehensible and counter-productive. However, to say that you downloaded music for personal use and it’s “fair use” strains credulity. As much as I’d like to see the RIAA whipped out of town, I can’t side with Tenenbaum on this.
willenamoye - July 29, 2009 at 10:15 am
When I go to the bookstore, I purchase the books that I want to read for “personal use.” If I didn’t, I would be arrested for stealing. When I write papers for scholarly publication, I quote small bits of other scholars’ thoughts and ideas, giving credit where credit is due. Stealing songs, thereby denying the artists who created those songs the royalties due to them, is theft. On behalf of creative artists off all stripes, I thank goodness for the RIAA for their enforcement actions.
_perplexed_ - July 31, 2009 at 2:25 pm
SONY BMG is suing for $4.5 million for 30 songs? Can I sue them for a gazillion dollars for insulting my sense of propriety? Probably not, but I may never buy any SONY product of any kind ever again.
abelvadi - August 3, 2009 at 8:26 am
We librarians who carefully study US copyright law have always been told by the legal experts that “fair use” isn’t a right, but a defense in court against a lawsuit. But if the judge doesn’t allow that defense to be used, then it doesn’t exist at all and the judge has negated this critical component of the statutory law on copyright. Fair use advocates everywhere in Academe should be concerned about this procedural issue, completely aside from the context of music downloading.