WLF Legal Opinion Letter
Sony v. Tenenbaum: There Are Limits To Fair Use Defense In Copyright Infringement Cases
By Ben Sheffner
October 9, 2009 (Vol. 18 No. 23)
Full-blown jury trials in copyright cases are rare. Copyright trials that capture the world's attention are rarer still. But this summer, the copyright bar enjoyed an embarrassment of riches, as the nation witnessed not one, but two high-profile copyright trials, both brought by the major record labels against individuals accused of using peer-to-peer networks to download and "share" music without paying for it.
In June, a jury in Minneapolis found a woman named Jammie Thomas-Rasset liable for willfully infringing 24 songs and awarded the plaintiffs a whopping $80,000 per work - an astounding total of $1.92 million. Scarcely a month later, Boston jurors ordered 25-year-old Boston University physics graduate student Joel Tenenbaum to pay $675,000 ($22,500 per song) for his illegal use of the KaZaA program to reproduce and distribute 30 songs. (The labels detected Thomas-Rasset "sharing" over 1,700 songs and Tenenbaum over 800, but they sought damages on only a small fraction.)
The Tenenbaum case received much attention for the extracurricular antics of the defendant's lead counsel, Harvard Law School professor Charles Nesson, a man universally described as "brilliant yet eccentric." Nesson exasperated the plaintiffs and eventually Judge Nancy Gertner by, inter alia, making surreptitious audio recordings of counsel and the court and posting the results to his blog, noticing the deposition of opposing counsel for a large law school auditorium, and fighting (unsuccessfully) all the way up to the U.S. Supreme Court for unprecedented permission to stream the proceedings via live webcast.
But for all of the (highly entertaining) sideshow, the Tenenbaum case also produced some actual law, perhaps most prominently in the wonderfully murky area of fair use. For the uninitiated, fair use is a statutory affirmative defense to an allegation of copyright infringement, often described as a kind of "safety valve" to be opened when strict application of copyright law's "no copying" edict would undermine principles of free expression. A reviewer's quotation of a few lines from a book in order to comment on or critique it is a classic example of fair use, for which no permission from, or payment to, the copyright owner is required.
In determining whether a particular use is fair, courts are required to apply the four factors set forth at Section 107 of the Copyright Act: 1) "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107.
Fair use is notoriously difficult to define with precision, and unpredictable in its application. As Second Circuit Judge Pierre Leval wrote in a highly influential article:
Judges do not share a consensus on the meaning of fair use. Earlier decisions provide little basis for predicting later ones. Reversals and divided courts are commonplace. The opinions reflect widely differing notions of the meaning of fair use. Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns. Justification is sought in notions of fairness, often more responsive to the concerns of private property than to the objectives of copyright.
Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1106-07 (1990) (footnotes omitted). Moreover, the four statutory factors are not exclusive; defendants are free to try to convince courts that new ones exist, and excuse their alleged infringements.
Nesson's strategy was to take the vagueness and vagaries of the fair use doctrine, and run with them, as far as Judge Gertner would allow. Never mind that obtaining free songs for one's listening pleasure is far removed from the categories of fair uses listed in Section 107: "criticism, comment, news reporting, teaching..., scholarship, or research." Never mind that the two federal courts of appeal to have considered fair use in the context of peer-to-peer infringement flatly rejected the defense. See BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001). And never mind that his own proposed expert witnesses on fair use, leading academics sympathetic to his cause such as Harvard's Lawrence Lessig and Terry Fisher, told him fair use wouldn't fly. (How do we know? Nesson posted internal defense team emails to his blog, in what turned out to be a highly damaging expression of his faith in "radical transparency.")
The record labels moved for partial summary judgment on Tenenbaum's fair use defense, arguing that there were no material disputes about the relevant facts, and that fair use was inapplicable as a matter of law. The plaintiffs' papers marched through the four fair use factors in conventional form, and their citation to abundant case law was devastating. Tenenbaum's opposition barely mentioned the fair use precedent. Rather, he proposed a grab-bag of additional factors, including "assumption of risk" (the labels were said to have assumed the risk of infringement by failing to put digital rights management technology on CDs), attractive nuisance (their marketing tactics allegedly encouraged kids to download), and the burden imposed on parents to police their children's Internet use. And Tenenbaum planned to bolster his arguments with testimony from an unconventional array of purported experts including former Grateful Dead lyricist John Perry Barlow (the Internet and peer-to-peer technology "allow us to do that which we, as humans, fundamentally need to do: share art") and ethnomusicologist (and Nesson son-in-law) Wayne Marshall ("songs are shared things"). The record labels, quite reasonably, claimed that Tenenbaum's arguments were nothing but thinly-veiled pleas for nullification of copyright law, which is deeply unpopular among many young Web denizens.
Judge Gertner - who had recruited Nesson to represent Tenenbaum and had expressed discomfort with the very fact of this lawsuit - was having none of it. At 1:37 a.m. on July 27, less than eight hours before the start of trial, she emailed counsel her opinion granting summary judgment for the plaintiffs on Tenenbaum's fair use defense:
[Tenenbaum] proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment.... Likewise, his demand for a jury determination on this issue appears all but standardless; "fair use' would, in effect, be any use whatsoever that a jury deemed fair. In the end, 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 that Congress established in the Copyright Act.
The fair use lesson from the Tenenbaum case? Yes, the doctrine is notoriously vague, and contains vast areas of grey. But though there is much grey, there is still black and white, uses that are clearly fair or not. Obtaining and distributing entire copies of songs to avoid having to pay for them is not fair use, even under the most malleable of standards. Even a Harvard Law School professor ought to be able to tell you that.
Ben Sheffner is a copyright, entertainment, and First Amendment attorney in Los Angeles and blogs at http://copyrightsandcampaigns.blogspot.com/. He is currently working as an attorney in the NBC Universal Television Group. The views expressed here do not necessarily represent those of any past, present, or future clients or employers.