Fair Use Defense Dismissed In SONY V. Tenenbaum 517
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by
kdawson
from the calvary-needed-no-questions-asked dept.
from the calvary-needed-no-questions-asked dept.
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.
Re:Before the arguments start? (Score:5, Informative)
All European countries? Spain is the only one, and lawmakers are trying to change that.
Re:Before the arguments start? (Score:5, Informative)
Because it's not legal in the U.S., nor is there any precedent of case law to suggest Tenenbaum's actions were legal? In fact, all the case law to date only reinforces the concept that what Joel did was illegal, and essentially sets fire to any and all copyright law that's ever existed.
Re:Only option left (Score:2, Informative)
Judges won't allow you to argue for jury nullification, dumbass. Speak more than a few works about it and there's likely to be a mistrial (and even those few words are not going to make the Judge happy). It's a lose-lose strategy.
Re:Before the arguments start? (Score:3, Informative)
All European countries? Spain is the only one, and lawmakers are trying to change that.
Dutch law allows it, although of course the local copy of the RIAA would like to change that as well.
Re:Before the arguments start? (Score:4, Informative)
Quoted from the article, for those too lazy to read it:
Under Dutch law, downloading games and software is illegal, but sharing copied films and music is not. The Dutch copyright law allows consumers to make a copy of CD's and DVD's they own, and to store those copies as files on their personal computers.
So there you have it.
Re:Before the arguments start? (Score:4, Informative)
To answer your question: no, it doesn't.
uploading is -not- allowed, downloading is. More accurately: distribution is not allowed, downloading is.
The distinction is a bit vague, as B downloading from A inherently means A is uploading to B, but quite technically a download and an upload are separate processes, hinging mostly on who initiated what.
Again this applies only to music and video (tv/movies). This doesn't apply to e.g. software* and books.
* yes, you're allowed to distribute linux distros and such. Please read these posts within the appropriate context.
Re:Only option left (Score:4, Informative)
If a juror even mentions jury nullification, they'll be off the bench in no time flat. Stop getting legal advice from pamphlets.
He is guilty, he admited, but... (Score:3, Informative)
The problem is the punishment they are applying... if it's 1.920.000 USD then in my opinion it's way too much. I am not a lawyer but let's do some math:
- punishment -> 1 920 000 USD
- yearly income of this guy -> 60 000 USD (a supposition)
- working to pay the punishment 32 years!!!
so... to pay a 1 920 000 USD punishment in his case is an equivalent of being condemned for a working camp for 32 years... well not exactly working camp but I guess you get my point. So is it really fair? They should be defending this guy for a fair punishment and not this inflated bullshit RIAA is trying get him into.
My 2 cents.
Good for him (Score:4, Informative)
I know /. likes to think redistributing mp3s is fair use since it's lossy compression and people wouldn't have bought the song anyway, but that's a very tortured explanation and out of touch with reality.
Re:There's an answer to this... (Score:3, Informative)
Unless the laws in question allow me to consume ANYTHING from them without any further interference, what basis would they have for collecting that money from me? Potential piracy? Uh...I don't see how that would stick.
It already has in Canada under the blank media levy. Don't be so quick to disbelieve.
Re:Before the arguments start? (Score:4, Informative)
As I understand it, it's the same way here in US, except that it does apply to software, books, or anything governed by copyright. The idea is that the uploader is the one doing the distributing, which makes sense to me.
Re:Before the arguments start? (Score:5, Informative)
Because "fair use" has nothing to do with the meanings of the words "fair" and "use". You can't look at a scenario and go "well, that seems fair". "fair use" is a specific legal term that covers a specific set of criteria that have to be applied to a situation. The judge is saving the defense wasted effort by saying ahead of time "no, there is no way you could possibly have fallen under enough of these criteria for that defense to fly".
USC 17 107 [copyright.gov]
Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall includeâ"
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Re:Before the arguments start? (Score:2, Informative)
...In case you didn't read it, something tells me the person who sold you the gun would not be at fault
If you actually believe that then I suggest you get an FFL and try it out in reality. Say hi to the friendly ATF agents for me when they slap the metal bracelets on you.
My post was entirely about how it would be perfectly legal for the person selling the item to sell it to you if there was no way of knowing where you were from or how it would be used.
And my point is that in most cases that defense doesn't fly.
Re:Before the arguments start? (Score:4, Informative)
Re:Before the arguments start? (Score:4, Informative)
No, it really isn't. Downloading is also technically illegal, it's just harder to prove, and there's less damages to shoot for, which is why RIAA and the likes are going for uploaders (and not just any one, but those which shared a large number of files and/or for a long time, and where there is generally ample evidence to prove that uploading happened).
Re:Before the arguments start? (Score:4, Informative)
If you actually believe that then I suggest you get an FFL and try it out in reality.
May come as a surprise to you, but you don't need to be an FFL holder to sell a gun, just like you don't need to have a business license as a car dealer to sell a car.
And my point is that in most cases that defense doesn't fly.
Incorrect. This is a state law issue. In Nevada, I can sell my 9mm pistol to my neighbor's brother, and if he turns out to live in NY city and not on my neighbors couch as I'd assumed and takes it back to NY with him, ATF can't do jack shit to me. If I lived in California, however, I'd be in violation of state law for not transferring via state-approved procedures.... but even then, the ATF still wouldn't show up at my door, it would be California DOJ dragging me off to the clink.
Re:gosh (Score:1, Informative)
That is a good analogy, especially because it is remarkably close to something that actually happened - and the taxi drivers won:
http://www.techcrunch.com/2008/11/12/ill-never-let-canada-live-this-down/ [techcrunch.com]
Re:two problems (Score:3, Informative)
"1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense."
Why do you say that? What on earth do you think happens during the hearing phase?
If judges weren't allowed to throw out defenses before a case goes to jury trial, we'd all be doing a lot more jury duty.
Re:Before the arguments start? (Score:3, Informative)
And to clear your misconceptions, the special case regarding Spain's clarification of their copyright legislation (which is also based on France's copyright tradition, is that it acknowledged that transfering any file through a network does not have any relevant impact on the copyrighted work's commercialization.
Re:Before the arguments start? (Score:3, Informative)
Well, here's some stuff from your first link:
The groups include the Swedish Association of Copyright, a discussion forum.
NorstrÃm also sits on the board of the Swedish Association for the Protection of Industrial Property, and the Internet Infrastructure Foundation, which oversees the dot-se country code and advises on domain name disputes.
So basically this isn't the local RIAA by the looks of it. The really suspicious part of it is presence of some people who were behind the prosecution in the same groups; so the question at hand would be whether he had any personal dealings with them.
The following is also interesting:
"It wasnâ(TM)t appropriate for him to take on this case," says Eric Bylander, senior lecturer in procedure law at Gothenburg University. "There are several circumstances which individually donâ(TM)t constitute partiality, but that put together can form a quite different picture. Itâ(TM)s also a matter of what signal this sends to the citizens. Anyone who, on reasonable grounds, can be appear biased in a case should not judge that case."
But Bylander says itâ(TM)s a toss-up as to whether the appeals court will find the conflict serious enough to throw out the verdict. "I donâ(TM)t think the trial will be declared a mistrial, but itâ(TM)s definitely a close call," he says.
So, basically, a knowledgeable lawyer who was skeptical about the whole thing, and considered the judge's behavior unethical, still didn't think that it was sufficient reason for the appeals court to declare a mistrial, and expected the outcome that happened. And now people claim that the appeals court was bribed.
Re:two problems (Score:3, Informative)
It's only a matter for the jury if a reasonable finder of fact could find either way. If there's only one conclusion a reasonable finder of fact could come to, then the judge is allowed to rule on it.
Now, in this case the activity in question involves the digital equivalent of setting up a stand on the street-corner and offering free copies of a copyrighted work to anybody who passes by and asks for it. Making copies for yourself of something you own, that's almost certainly fair use. Handing out one or two copies to a couple of friends, that may be fair use. Making copies for complete strangers, in wholesale quantities? Not anywhere near anything traditionally considered fair use. So the judge is on solid legal ground by saying "No reasonable jury could possibly conclude this was fair use, so I'm just going to take it off the table.".
The only way fair use could have been used as a defense is by arguing "I asked my local geek to set up something so I could get at my own music from my other computers. I didn't intend it to be publicly accessible, I didn't realize he'd made it publicly accessible, and I corrected the problem as soon as I became aware of it.". But at this point making that argument's impossible.
So here's what I don't understand (Score:2, Informative)
Well, OK, fine. But the true damages in filesharing are when you take that $1 song and make it available for x,000 or x,000,000 people on the Internet to download. Essentially, you have then become an alternate publisher, and if you and people like you were allowed to continue, copyright would simply become meaningless.
So, yes, it is reasonable to put a stop to such behavior. If it can be proven in court, it is reasonable to expect that someone who becomes their own publisher of someone else's copyrighted works would be liable for some big damages. Just because this is so trivially easy in the digital age does not make it any more right.
Which does not mean I support draconian enforcement strategies. This is a civil matter, not a criminal one.
It pains me to write this.
Yes, before the arguments start? (Score:3, Informative)
Entirely standard practice and sets the stage for an appeal to the higher courts. In the American system, appeals as to a judge's finding regarding the law is what is called a de novo; meaning that the appeals court will review anew the lower court judge's legal findings. By contrast, the standard of review for findings of fact is the "highly deferential" standard. In practice, this means that it is much easier to prevail on an appeal regarding a judge's finding of law then it is to say that the judge/jury made an incorrect finding of fact. The upshot is that the defendant now has a nice clean legal issue (to wit, whether fair use can apply in cases like this) to present to the appeals court. Very nice from a law professor's point of view, though not a strategy most trial attorneys would endorse.
Yes, IAAL, but I am not your lawyer -- and there are an infinite number of permutations on this theme that justify(?) my billing rate. Consult one of your own for more info.
Re:Before the arguments start? (Score:5, Informative)
Juries aren't supposed to rewrite legislation
They're not? Someone tell that to the founding fathers [wikipedia.org]: