With fair-use defense rejected, RIAA music piracy trial could end with big fine

Joel Tenenbaum could get hit with millions of dollars in damages

As the closely-watched trial of a Boston University doctoral student accused of music piracy enters its third day in U.S. District Court in Boston, some are wondering about the likely impact of a pretrial decision by the judge hearing the case.

The ruling by Judge Nancy Gertner essentially forbids the defendant, Joel Tenenbaum, from asserting a "fair use" defense in arguing his case. That doctrine allows for the use of copyrighted material without permission from the rights holders in some specific circumstances including transformative use or for nonprofit academic purposes.

In her ruling on Monday, Gertner said that Tenenbaum had not provided any "hard proof" to show how his alleged illegal music distribution constituted fair use. Instead, "he proposes a fair-use defense so broad that it would swallow the copyright protections that Congress has created," she wrote, adding that Tenenbaum's interpretation of the fair use rule "would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment."

Gertner granted a plaintiff's motion for a partial summary judgment on the issue.

Tenenbaum, 25, was sued for copyright infringement by the Recording Industry Association of America (RIAA) in 2007. His case shot to prominence last fall when Harvard law school professor Charles Nesson announced he would represent Tenenbaum in his fight with the RIAA. The trade group claims to have found more than 800 songs stored illegally in a shared folder on Tenenbaum's computer, although the lawsuit only identifies 30 of those songs. The statutes under which Tenenbaum is being sued allow for statutory damages of up to $150,000 per infringement or up to $4.5 million if the maximum penalties are applied in this case.

The Tenenbaum case is only the second RIAA music lawsuit to go to trial. The other case ended last month with a federal jury in Minnesota assessing damages of $1.92 million against Jammie Thomas-Rasset, a woman accused of illegally distributing 24 copyrighted songs. The award for the RIAA was nearly nine times the original $222,000 fine levied against her in an earlier trial. That award had been overturned on technical grounds.

The size of the jury verdict in the Thomas-Rasset case surprised many and has focused a lot of attention on the Tenenbaum case.

Ben Sheffner, a copyright attorney and former counsel for content protection litigation at Fox and NBC, called Gertner's pretrial ruling a "devastating blow" for Tenenbaum's prospects for victory. In a blog post Monday, Sheffner noted that while the defense may still be able to cite fair-use issues to mitigate damages, the jury will not be permitted to consider the doctrine. "Fair use is now completely gone from the case, and with it Tenenbaum's primary defense to the labels' claims that he downloaded and "shared" 30 songs," Sheffner wrote.

"It seems that there will be no 'I didn't do it' defence or no 'innocent infringement' defence" by Tenenbaum's lawyers to reduce potential damages, wrote Howard Knopf, a copyright lawyer and chairman of the copyright policy committee at the Canadian Bar Association. In his blog, Excess Copyright, Knopf noted that one of the controversies surrounding Tenenbaum's defense "has been the very public discussion of whether the fair use defense could/should/would fly."

The fact that it did not should come as no surprise, Knopf said. "So, unless Prof. Nesson can pull a rabbit out the hat on cross examination, things don't look too good for Joel."

But Ray Beckerman, a New York-based attorney who has represented several clients in RIAA lawsuits said in an e-mailed comment to Computerworld that the fair use defense "was not important because it was not interposed in a meaningful way" in the case. By taking a broad, "all-or-nothing" position that the use of a file-sharing network for noncommercial purposes was protected by fair use, the defense failed to frame the issue properly, Beckerman said in his blog Recording Industry vs. The People.

The real issue is whether the plaintiffs can prove that actual distribution took place and whether they can show proof of exactly how much damages they suffered. Plaintiffs should also be required to prove that downloaded songs were actually played and listened to, he said.

"If the law is applied correctly, the plaintiffs will recover nothing," Beckerman said in his note.

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