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Fair Use Defense Dismissed In SONY V. Tenenbaum 517

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.
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Fair Use Defense Dismissed In SONY V. Tenenbaum

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  • by guruevi ( 827432 ) <evi&evcircuits,com> on Monday July 27, 2009 @09:31PM (#28846319) Homepage

    I wonder why judges are throwing out defenses before the defense could even bring out the arguments of their reasoning. Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

    This seems like another bought off or pressured case.

    • by Gravedigger3 ( 888675 ) on Monday July 27, 2009 @09:34PM (#28846331)

      The RIAA is objecting on the grounds that it is devastating to their case. Also known as the "Fletcher" defense.

      • by jav1231 ( 539129 ) on Monday July 27, 2009 @10:32PM (#28846843)
        "Also known as the "Fletcher" defense."

        Okay, I read that as "felcher" and thought, "Wow! This really DOES suck ass!"
    • by basementman ( 1475159 ) on Monday July 27, 2009 @09:36PM (#28846361) Homepage

      All European countries? Spain is the only one, and lawmakers are trying to change that.

      • Re: (Score:3, Informative)

        by Anonymous Coward

        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.

        • by fewnorms ( 630720 ) on Monday July 27, 2009 @09:47PM (#28846483)
          And before people start posting [Citation Needed], here's a link [] to an article talking about Mininova in particular, but also mentions the current law in the Netherlands with regards to downloading music and movies.
          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.

      • by citizenr ( 871508 ) on Monday July 27, 2009 @11:46PM (#28847367) Homepage
        Poland is the next one. You can copy for your friends and family for non commercial use.
      • Re: (Score:3, Informative)

        You are wrong. All countries who implemented their copyright system following France's tradition do grant the right to access a copyrighted work without authorization as long as, among other conditions, the distribution is purely non-commercial and doesn't affect commercial distribution and if the access to the work is exclusively for personal use. Although pressure from the US is trying to force legislation is trying to erase the work of art's status as a cultural manifestation and replacing it with a stat
    • by netwiz ( 33291 ) on Monday July 27, 2009 @09:38PM (#28846381) Homepage

      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.

    • by RedK ( 112790 )

      Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

      However, most cases are brought on the grounds that the defendant has been Distributing (uploading) said music. Does Fair use also cover this ?

    • Re: (Score:3, Insightful)

      by Gerzel ( 240421 ) *

      Oh the judge is just saying that the standards for fair use are very vague and that to use them in a legal system you'd need an entire system to judge weather or not the use was in fact fair, a judgement system if you will. Too bad the US doesn't seem to have one of these at the movement.

    • by Sparr0 ( 451780 ) <> on Monday July 27, 2009 @11:02PM (#28847049) Homepage Journal

      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 []

      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.

    • by jcr ( 53032 ) <> on Monday July 27, 2009 @11:02PM (#28847053) Journal

      I want to know why judges are disallowing defenses at all, and what the constitutional basis is for doing so. The Jury's not there to do the judge's bidding, they're there to hear what the two sides have to say, and come to their own conclusions.

      Keith Henson never got to argue that copying an L. Ron Hubbard screed to show it to law enforcement officials was fair use.


    • by Freetardo Jones ( 1574733 ) on Tuesday July 28, 2009 @12:21AM (#28847595)

      Copying (downloading) music for personal purposes is considered fair use in many if not all European countries.

      That's great. Care to explain when Boston, Massachusetts became part of Europe?

    • Yes, the judge ruled as a matter of law that the fair use defense is not applicable in this case. Fair use is what lawyers call an "affirmative defense." The defendants have to convince the judge that, as a matter of law, they are entitled to present an affirmative defense to the finder of fact (either the jury, or if there is no jury, the judge). If the judge finds that the defendant has not met their burden of proving their affirmative defense, then the defendant is not permitted to present evidence in
  • gosh (Score:5, Insightful)

    by wasabii ( 693236 ) on Monday July 27, 2009 @09:34PM (#28846335)

    Man I don't get how people are so polarized about this. Look dudes. It's against the law to infringe copyrighted material. It's against the law to aid somebody else breaking the law. File sharing therefor is Against The Law. It is the Proper Decision for these people to be convicted. Anything else would make me think the judges were asleep at the wheel.

    If you dislike that so much, don't focus on whether somebody wins or loses these cases. It is Proper that they lose. It would be Wrong if the law bent so much to allow what is clearly outlawed. Instead, seek to CHANGE the law. Donate to lobbyists. Become lobbyists yourself. Civil disobedience is fine, but don't expect to get off the hook for doing it until you change the law.

    • Re:gosh (Score:4, Insightful)

      by timmarhy ( 659436 ) on Monday July 27, 2009 @09:37PM (#28846373)
      you've nailed it. this guy has admitted to file sharing of copyrighted songs, he's toast under current law no matter how you cut it. judges can't over rule the law, merely work within it's boundries.
      • by benjamindees ( 441808 ) on Monday July 27, 2009 @10:04PM (#28846639) Homepage

        Actually judges can (and should) over-rule the law. The judiciary exists as a check on both the executive in the application of the laws as written, and on the legislature in the drafting of laws that are in accord with constitutions and with individual rights.

        If the judiciary isn't going to over-ride unconstitutional laws, no one else will. It is arguably the most important function of a judiciary in a free society.

        As an aside, one of the more telling exchanges in the recent hearings for Judge Sotomayor was when the new Senator Franken naively asked her whether individuals have a free-speech right to unfiltered internet access []. Her response was basically that individuals have no inalienable rights and that the Supreme Court exists to interpret laws as passed by Congress. This is a patently false, legal positivist notion in direct conflict with the US Constitution that has infected the judicial system within the US and has led directly to the recent wholesale approval of human rights violations that we have seen in this country.

        Interpreting individual rights in deference to acts of Congress or to claimed executive privileges has neutered the concept of individual freedom and human rights in the US, in cases involving everything from individual property seized by governments for the benefit of private developers, to the war on drugs, gun control, illegal wiretapping and habeas corpus violations of US citizens. We have reached the point that now not only do we have judges ignoring rights enumerated in the Constitution which they are sworn to uphold, but also ordering defendants not to defend themselves on the basis of these rights and denying them due process as well!

        The judiciary as an enforcement arm of the sovereign was a notion we as a country should have cast aside with the Declaration of Independence. The fact that we have not is prima facie evidence of a need for the tree of liberty to be again refreshed in this country.

        • by zippthorne ( 748122 ) on Monday July 27, 2009 @10:39PM (#28846889) Journal

          I was going to mod you up, but then I remembered the nutrient that the tree of liberty thrives upon and became depressed.

        • by Bobb9000 ( 796960 ) on Monday July 27, 2009 @10:58PM (#28847021)
          I'm not sure that your summary of Sotomayor's response is entirely accurate, but setting that aside, I don't necessarily disagree with the notion that there are no "inalienable" rights. What sort of rights did you have in mind, exactly? The First Amendment says that Congress "shall make no law" abridging freedom of speech or religion. That's no law. Yet, we have laws against revealing state secrets (and there are some valid ones, like troop movements on the battlefield, etc.), against the classic "'fire' in a crowded theatre", against slander. Are these all unconstitutional? Can the government really put no controls whatsoever on speech? I don't think that's tenable in a real society. The same goes for every other right guaranteed in the Constitution - if the government can produce a good enough reason, Congress can pass laws that limit those rights. They just have to be really, really, really damn good reasons. I tend to agree with the sentiment, expressed by Jefferson, Lincoln, and others, that the Constitution isn't a suicide pact. There are times when the good of the nation takes precedence.

          Just so it's clear, I haven't seen anything in recent years that comes close to the level of justification necessary to violate many of those rights. The forays into that territory made in the name of the "war on terror" are, in my opinion, completely unjustified. But that doesn't mean that we should slide into magical thinking about the nature of rights and laws. Legal positivism, at least in some of its forms, isn't the bogeyman you're implying it to be.
          • by Peter La Casse ( 3992 ) on Monday July 27, 2009 @11:26PM (#28847239)

            Yet, we have laws against . . . the classic "'fire' in a crowded theatre"

            For historical context, the "fire in a crowded theater" quote comes from a case where the court ruled that it is OK to prohibit dissemination of anti-war propaganda during wartime. What "fire in a crowded theater" means is "we can prohibit political speech we disagree with." It was not exactly a shining moment in the history of this country.

    • by netwiz ( 33291 )

      Eh, I have a real problem with prosecuting the people for "making available." Prosecuting people that share their music for having enabled copyright infrigement is essentially like prosecuting people for leaving their doors unlocked and having enabled burglary.

      • Re: (Score:3, Interesting)

        It's closer to having a front yard give-away of paintings that you copied off of work you recently saw at an exhibit for current artists.

        • no its closer to having a front yard give-away of CDs that contain digital pictures of paintings that you took with your digital camera you recently saw at an exhibit for current artists.
    • The ability to get the law changes seems to directly correlate to the amount of money people are able to throw at the right politicians to further their agenda. The people who are passionate about the issue are usually not in a financial position to "lobby" against the current laws. Therefore people do the next logical thing, which is to ignore the laws which they are unable to change (see Marijuana).

    • Re: (Score:3, Interesting)

      by iamwahoo2 ( 594922 )
      copyright infringement may be against the law, but file sharing is not necessarily copyright infringement. Copyright is not black and white. Things like fair use create an enormous gray area, not to mention the fact that many consider copyright to be unconstitutional.
      • Re:gosh (Score:4, Interesting)

        by Kjella ( 173770 ) on Tuesday July 28, 2009 @01:54AM (#28848157) Homepage

        Copyright is not black and white. Things like fair use create an enormous gray area, not to mention the fact that many consider copyright to be unconstitutional.

        No theory of fair use will let you hand out full copies of a work to any random stranger, and without uploaders there wouldn't be any file sharing. There's plenty excuses to get away with it, but little to no doubt about the law. And apart from the "limited times" that may be in doubt, it must be one of the clearest grants of power in the constitution. Based on download counts I'm fairly sure most file sharing falls under the original terms anyway. I might not agree with the law, but it's basically pitch black, if you think it's gray you'd better clean your glasses.

    • Re: (Score:3, Insightful)

      by c0d3g33k ( 102699 )
      People are polarized because the law is in conflict with a belief many (or most) people are taught from childhood: sharing is good. Having candy? Bring enough for everyone, or at least give your friend half. Have a good book? Loan or give it to a friend. Done with the newspaper? Leave it at the coffeeshop table so the next person can read it. Can't afford books? Go to the public library and borrow them. Know a good recipe? Share it with friends and family. Know a good joke? Tell all the people
      • Re:gosh (Score:5, Insightful)

        by iamwahoo2 ( 594922 ) on Monday July 27, 2009 @11:13PM (#28847141)
        It may be about sharing for you, but for me, it is hard to deal with the injustice of the system. I do not believe that you should ask from other what you are unwilling to ask of yourselves, and it pains me to see somebody get financially ruined for copyright infringement, knowing that most of us have been guilty of the same thing. How can this judge make this ruling, knowing that she has probably infringed on copyright at some point in her life and got away with it, and if by some small chance, she never infringed on copyright, then surely someone close to her has. What other law today is broken so oftenyet carries such a large penalty for those whom are caught? Copyright infringement is in a class by itself as the singular most unjust law in the Unites States.
        • Re:gosh (Score:5, Insightful)

          by Opportunist ( 166417 ) on Tuesday July 28, 2009 @04:44AM (#28848977)

          And I think that's due to what the GP pointed out: That we've been educated with the ideal that the good person gives. We grew up in an environment with (more or less) "western" ideals, which in turn are heavily influenced by Christian ideals. And no matter whether you believe in some higher being, the moral code set by that religion(s) had a huge influence in our moral code. Don't lie. Don't steal. Don't murder. But also, be cooperative, be helpful, give when you can and make the life of your peers better.

          Not giving when you don't have any kind of disadvantage by giving is seen as an atrocity. If you saw a hungry person and you're full but still have food, would you throw the food away instead? If your neighbor's car does not start and you have a spare battery, could you not lend it to him? Our society would call you names if you didn't, calling you a selfish, miserly Scrooge. Scrooge being a perfect cue, we also have a lot of plays and stories revolving around how the greedy, miserly people only achive happyness once they overcome this and become giving, kind philanthropists.

          A law that dictates that you must not give despite not losing anything goes against the moral code we were raised by. You have something that someone else wants, and you can multiply it easily and make him happy. Yet by doing so you're not the good person that you were always told you were when you gave. You'd be a bad person that breaks the law.

          The problem with the law isn't so much that it is unjust. The problem is that we feel that it's wrong. It goes against anything we feel morally inclined to do. It's like being told that you must not give a thirsty person water when all you had to do is turn on the faucet.

    • In previous copyright infringement cases in the US and abroad things just aren't that simple. American movie studios tried to argue that the VCR was helping people commit copyright infringement. Prior to The Pirate Bay's trial, The Pirate Bay's servers were stolen in what The Pirate Bay maintains was a joint effort of US government (at the behest of the American movie makers) and the Swedish government. This got Swedes riled, as I understand it, because there's no good reason why Swedes should have to satisfy American movie corporations in their copyright regime (should they choose to have a copyright regime at all). The RIAA is not to be trusted in court. Their history includes threatening the wrong people such as the 2003 threat against Penn State's Prof. Usher who, with his team of researchers, innocently recorded a song in celebration of their new telescope. How did they get caught in the RIAA's all-too-blind dragnet? Apparently they dared to store an MP3 file containing the strings "usher" and ".mp3" in the filename on a publicly-accessible FTP server and nobody at RIAA thought to listen to the file before launching into litigation threats. In 2007, the MPAA committed copyright infringement in their GNU/Linux distribution aimed at making university IT personnel spies on behalf of the MPAA. The MPAA famously illicitly copied the documentary "This Movie Not Yet Rated", which was critical of the MPAA on multiple grounds, and tried to pass their illegal copying as though it were acceptable in the process of issuing a rating for the movie.

      People are polarized about this issue because they sometimes see the needless legal suffering and hypocrisy brought by well-funded copyright maximalists and they don't want those maximalists defining the contours of copyright law alone.

    • Re:gosh (Score:5, Insightful)

      by Darkness404 ( 1287218 ) on Monday July 27, 2009 @10:23PM (#28846781)
      Its not the fact that its against the law its the fact that A) these people are convicted for -insane- damages. Ok, how much is a song worth? About $.99 right? But to the RIAA they can sue for -hundreds- and -thousands- for a single song. So what do you think would happen if I stole a CD from Wal-Mart and they found out about it? They would probably charge me a few hundred dollars, perhaps ban me from the store, etc. they wouldn't sue me for many thousand dollars. Wait, but here is the thing, Wal-Mart -bought- the CD wholesale, Wal-Mart paid money for it, for digital copies they don't cost a cent to make so there are no lost profits. B) They are convicted for little to no evidence. It would be like a murder investigation throwing someone in prison because they were on the same street that the murder took place at the time of the murder. That wouldn't fly.

      The law states that penalties should not be outrageous, I think anything more than $20-$30 a song is outrageous. The RIAA did not lose much of anything whenever a song is "pirated".
    • Re: (Score:3, Interesting)

      by Hurricane78 ( 562437 )

      My friend, what is that planet you live on? Do you got the money to change things? Can you compete with the Monsantos, RIAAs and Microsofts of this world?

      Laws are useless in the context that you are applying them. Good people don't need them, and bad people ignore them anyway.
      They were once rules to decide, what a group of people decided as hurting one of them. Punishment is, to not belong to the group anymore.
      But nowadays, they are bullshit, like "don't walk across the road, when it's red" or "don't copy t

  • by netwiz ( 33291 ) on Monday July 27, 2009 @09:35PM (#28846339) Homepage

    This "defense" cooked up by Neeson's retard students is absolute malarkey. The judge's ruling against fair use as a defense is spot-on. There's no "fair use" here, only some kid violating copyright for the hell of violating copyright. This is going to end badly for Joel, and his crybaby defense scheme is only going to set bad precedent. Someone somewhere will only extend this case's outcome to further wreck the place. The whole thing stinks to high heaven of a bunch of whiny Harvard assholes who simply didn't get what they want and would rather push a shitty agenda rather than work through rational means.

    • Pure and simple, Nesson has totally screwed over his client in a big way here. I've said it before and I'll say it again - the role of a trial attorney is to defend the client, not to try to make some wild social statement.

      Unless he's just using the case to advance an agenda and will pay the judgement out of his own pocket, that is. In which case, fine, Tannembaum is just a proxy for Nesson to have standing to argue in court.

      But if he chunks this case and leaves the defendant holding the bag, he's lower t

  • by ammorais ( 1585589 ) on Monday July 27, 2009 @09:35PM (#28846347)
    Seems to me like this is one more case of defense blowing up the chances of success on the case.
    Isn't the defendant totally screwed since he already admitted guilt. If so, how can the defense allow the case to be lost before trial.
    • Re: (Score:2, Interesting)

      by ammorais ( 1585589 )
      Troll. WTF? What is troll about my comment???
      • Troll. WTF? What is troll about my comment???

        Someone disagreed with you, so they modded you troll. Or, to use a slashdot meme (and looking at your UID): You must be new here.

  • Saw this coming (Score:2, Insightful)

    by Anonymous Coward

    What I want to know is how Harvard Law thought fair use would apply. This doesn't really speak to their training as laywers. I certainly don't support the RIAA in their war on file sharing, and 1.92M is absurd, but this was a weak defense from the outset. I hope they come up with something better. Its frustrating to watch a fight in which both sides are using only the most inapplicable and irrational arguments available.

  • Only option left (Score:5, Interesting)

    by jmorris42 ( 1458 ) * <jmorris@beau . o rg> on Monday July 27, 2009 @09:35PM (#28846353)

    The **AAs have gone for the nuke option so the defense should as well. Toss the lawyers (they would risk disbarment) and go for a Jury Nullification. At this point there isn't much to lose, play the trial out by the book from here and the conclusion is predetermined. But if the defense goes for a nullification there is a very non-zero chance of pulling it off. Or getting a mistrial declared.

    • Re: (Score:2, Informative)

      by Anonymous Coward

      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:Only option left (Score:4, Informative)

      by NeutronCowboy ( 896098 ) on Monday July 27, 2009 @10:32PM (#28846845)

      If a juror even mentions jury nullification, they'll be off the bench in no time flat. Stop getting legal advice from pamphlets.

      • Re: (Score:3, Interesting)

        by jmorris42 ( 1458 ) *

        > If a juror even mentions jury nullification, they'll be off the bench in no time flat.

        There isn't much a corrupt judge can do to stop the defendant from doing it. Lawyers can be threatened with everything up to and including disbarment and even jail. But the defendant in this case is facing certain ruin, what can a Judge do that is worse than that? And once the jury is locked in to deliberate there isn't much of a way to control what they do from that point on.

        Jury nullification is dangerous, yes.

      • Re: (Score:3, Insightful)

        by Draek ( 916851 )

        One has to wonder, though, about a right you enjoy only for as long as you don't try to use it...

  • by jellomizer ( 103300 ) on Monday July 27, 2009 @09:36PM (#28846355)

    Sometimes the Judge needs to set the bar at a different level. Even if it is not in our sides favor. Fair Use Defense is very loose set of rules with a huge gray area, and would really need a higher court to mark such lines. And the Time and effort to prove fair use would be long and laborious and only give a small advantage to the case. We really need to debate more concrete issues. If we loose then we can try for a higher court. Who may be more willing to attempt to draw the fair use line. However if that line is drawn it may not be to our favor as well.

  • Where is NewYorkCountryLawyer when you need him?

    I don't know what to believe without NewYorkCountryLawyer weighing in his opinion!

  • by Svartalf ( 2997 ) on Monday July 27, 2009 @09:38PM (#28846383) Homepage

    ...don't use their stuff.

    Seriously. If you don't like what you're seeing. Don't buy it. Don't share it.

    Hell...don't listen to it wherever possible.

    There's enough cool music from indies that have no connections whatsoever with RIAA that you can satisfy your musical tastes in most cases without making deals with the devil.

    If you do that, they won't have your money.
    If you do that, they won't have a leg to stand on to come after you.


    You're customers, not consumers- and if you don't like what you're seeing, you need to stop buying. If you're not buying and using, you're consuming, but not paying- which is playing the game wholly by their rules and you will eventually lose.

    • Re: (Score:3, Interesting)

      Problem with this is they are trying to get laws passed so that no matter what you listen to, they will get some amount of money.
      • Re: (Score:3, Funny)

        by shentino ( 1139071 )

        cat /dev/urandom > /dev/dsp

        Much better quality than the RIAA's crap.

        And if they can tax that then I'll fire the first shot of the new revolution.

    • by Darkness404 ( 1287218 ) on Monday July 27, 2009 @10:36PM (#28846865)
      The problem is, the RIAA executives are so screwed up in the head that -any- drop in profits means "ZOMG PIRATES!!!!1!1!11" they don't think rationally. Any drop in profits to them is always caused by "pirates" not that the song was crap, that people are boycotting the RIAA, etc. its always "pirates" to them. So while its good and all to boycott them, thinking its going to make a change is quite idealist and won't make a drop of difference in the world really, but keep trying.
    • Re: (Score:3, Interesting)

      by Draek ( 916851 )

      And just to help you all to do so: [] [] [] []

      If anyone has any other link, feel free to post them as well.

  • by pembo13 ( 770295 ) on Monday July 27, 2009 @09:38PM (#28846387) Homepage


    the proposed defense would be "so broad it would swallow the copyright protections that Congress has created

    then maybe the law, written by mortals, is wrong. It's not like the defense goes against the laws of nature and can't possibly be right.

    • by benjamindees ( 441808 ) on Monday July 27, 2009 @10:29PM (#28846817) Homepage

      Lawyers (and judges) these days have literally zero concept of a law being "wrong". They are trained and selected through years of education to bring cases to an equitable resolution. No party actually wins or loses. They settle. The lawyers win.

      They have evolved to this point through natural selection and their own best interests.

      Laws are no longer scrutinized for logical consistency or correctness or even adherence to any type of higher law. They are merely accepted as the will of the legislature and added to the growing pile of regulations to be forced on the plebes.

      The old stereotypes of Perry Mason or Matlock getting at the truth of a legal question are long gone. There is no more truth. There is only a vast gray area in which to bring both parties to some type of agreement. And if they can't agree, well then just rig the system by disallowing any argument that might lead to resolution of the conflict at hand.

      Listen to this judge. Even allowing the defendant to utter such a phrase as "fair use" to a jury would be somehow unfair to the Congress, who after all worked very hard to try to make a fair Copyright law. We wouldn't want to offend them with the possibility that twelve citizens might find their laws to be fundamentally flawed, through anything resembling a fair trial or due process or anything.

      Our latest Supreme Court nominee didn't even like Perry Mason. She preferred the prosecutor who continually brought half-assed wrongful prosecutions of innocent citizens before the court and lost every week. She probably felt sorry for him. She probably went into law in order to bring some equity to the system, and give him a chance to win more often. Surely the fact that he lost every time meant that there was some inherent flaw in the system, right? Wasn't he being discriminated against somehow?

    • by Kjella ( 173770 ) on Monday July 27, 2009 @11:22PM (#28847207) Homepage

      Yes, it is. But unless it's against the constitution or some other fundamental rights or is very unreasonable to Congress' intention I don't see how it is the judge's place to change it. Every time I see something about jury nullification or activist judges I'm thinking that's because the US has so royally screwed up the parliamentary system. It's one to nine judges. There's twelve jurors. They're not supposed to override hundreds of millions voting in representatives that again voting in laws, not unless it's really really serious. You don't fix a broken democracy by creating a vigilante oligarchy of judges or killing consistency and fairness by jury nullification. How about giving people a better choice than a coin flip? I can promise you that it works, once they parties to look out both to the left and the right politicians can't afford to make nearly as many unpopular decisions or ignore the public. You might even see the return of real democratic and republican parties, not the parody of themselves that most end up as after a while. Of course, the only ones that could change that are those with everything to lose, now that's what is truly without checks and balances...

  • by russotto ( 537200 ) on Monday July 27, 2009 @10:30PM (#28846827) Journal

    The opening arguments from the defense will now consist of defense counsel singing "I've Been Working on the Railroad".

  • A foolish defense (Score:5, Insightful)

    by Ammin ( 1012579 ) on Monday July 27, 2009 @10:33PM (#28846851)
    Disproportionate statutory damages is the only reasonable defense; as others have pointed out, the RIAA gains ridiculous leverage because merely leaving a song upon eMule subjects you to thousands of dollars in phantom damages. Even if you ARE innocent, the risk/reward ratio allows the record mafia to shake you down simply because no one can risk the damages from losing.

    Of course, the other obvious approach is to have Congress rewrite the statute to properly differentiate between a bootlegging operation with thousands of dollars in profit with counterfeit DVDs and some poor schmuck trying to get a few Mp3s.
  • by Anonymous Coward on Monday July 27, 2009 @10:36PM (#28846879)

    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.

    • Re: (Score:3, Insightful)

      by cpghost ( 719344 )
      Have you actually factored in the interest rates on those $1.92M? Effectively, this sentence is equivalent to labor camp for life, not just 32 years.
  • Good for him (Score:4, Informative)

    by larry bagina ( 561269 ) on Monday July 27, 2009 @10:42PM (#28846915) Journal
    Wikipedia lists 4 criteria in deciding fair use:
    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.

    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.

  • two problems (Score:4, Insightful)

    by shentino ( 1139071 ) <> on Monday July 27, 2009 @11:07PM (#28847087)

    1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.

    2. Second of all, whether or not fair use DOES apply is an issue of fact that is properly reserved for a jury to decide.

    Either the judge is braindead, or he's setting the defense up for an appeal.

    • Re: (Score:3, Informative)

      by shark72 ( 702619 )

      "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:two problems (Score:4, Interesting)

      by FishWithAHammer ( 957772 ) on Tuesday July 28, 2009 @01:03AM (#28847867)

      1. First of all, it isn't up to the judge to preemptively prohibit an affirmative defense.

      It is, as a matter of court procedure, if he's going to rule it inapplicable anyway. That's why both parties must provide briefs of their arguments before arguments are made.

      2. Second of all, whether or not fair use DOES apply is an issue of fact that is properly reserved for a jury to decide.

      In many jurisdictions, this is not at all the case.

      Either the judge is braindead, or he's setting the defense up for an appeal.

      I know it's hard for Slashdot Aspie-wannabes to consider, but maybe he's smarter and more qualified than you are.

    • Re: (Score:3, Informative)

      by Todd Knarr ( 15451 )

      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

  • by P0ltergeist333 ( 1473899 ) on Tuesday July 28, 2009 @01:49AM (#28848131)

    Is no-one else staggered by the irony and hypocrisy of Sony using fair usage against Universal, and then it being disallowed when they are the bully? This judge is an idiot, plain and simple.

  • by cheros ( 223479 ) on Tuesday July 28, 2009 @02:18AM (#28848279)

    I must say this is about the best summary of quite a few business changes since the Internet came along:

    "What happens when you're selling bottled water in the desert and it starts to rain." - Nesson.

    Absolutely awesome metaphor of losing a monopoly..

"If it's not loud, it doesn't work!" -- Blank Reg, from "Max Headroom"