RIAA: Tenenbaum "fair use" defense is laughable - Ars Technica - The Diigo Meta page

• 18 Jul 09
  

  Patrick O'Keefe
  • the labels have asked the judge for limited summary judgment—they want a ruling that Joel Tenenbaum's alleged P2P use is not "fair use."
  • "The list of P2P networks that Defendant has used over the years reads like an entry from a P2P encyclopedia: Napster, AudioGalaxy, iMesh, Morpheus, KaZaA, and LimeWire, among others," say the labels. Even though Tenenbaum was notified in 2005 that the labels intended to file suit against him, his "Gateway computer contains evidence that Defendant was using the LimeWire file sharing program in February 2007, and possibly as late as May 2008, long after this case was filed, to distribute thousands of music files to other LimeWire users."
  • 5 more annotations...
  • • That law contains four factors used to make such a determination, but since all four go quite obviously against Tenenbaum, he has proposed using a few more factors of his own devising. (The law only says that "the factors to be considered shall include..." the four listed, implicitly allowing additional factors in some cases.)
    • The labels have nothing but scorn for these extra factors. "In his recent deposition on fair use issues, Defendant explained that his fair use defense also relies on factors such as how much music he later purchased, whether he discussed his downloads with friends, whether he downloaded a whole album or just one song off of an album, whether he profited from his distribution, his state of mind (i.e., did he know whether it was illegal), the extent to which he 'identified' with a song, whether a song 'expresses' who he is, and whether P2P use benefits 'obscure' songs."
    • "Defendant downloaded complete copies of Plaintiffs' sound recordings for free, and then distributed them to others without alteration. Whether he 'identifies' with a song or not, Defendant added nothing creatively. He took copyrighted music without paying for it, kept it on his computer for his own benefit, and then distributed it to others without doing anything that could remotely be considered transformative. Defendant’s purpose was to avoid the cost of buying the music—which he concedes was widely available to him from legitimate sources, including both physical retailers and online sources..."
    • "No conceivable set of facts exists that would allow Defendant’s unlawful copying and distribution to be considered fair use, and every court to rule on the issue on facts nearly identical to those presented here has rejected any claim of fair use by infringers like Defendant."
    • The labels argue that there is no disputed fact to decide on this issue (and therefore no jury is required), so they want Judge Nancy Gertner to rule that fair use does not apply in the case. If the labels win on this matter, it's easy to envision the trial going very, very badly for Team Tenenbaum.
• 15 Jul 09
  

  Jonathan Bailey

  120 tenenbaum nesson fairuse

  • The labels can also thank Nesson's "radical transparency" for one of their own arguments—one in which they point out that not even Nesson's own group of free culture warriors agree with the fair use claim being made here.
• 14 Jul 09
  

  Steven Josselson

  copyright techpolicy riaa fair-use p2p trial news Delicious

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