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Daily Archive for Monday, July 20th, 2009

Fair Use + Brent Whelan – view from montparnasse

my friend brent whelan came to court this morning for our (unrecorded) hearing on summary judgment and fair use. here is his blog, followed by a memo in fern’s voice as well as mine.

Monday, July 20, 2009
Justice, Equity, Public Interest, and the MP3

Like the Moakley Federal Courthouse itself, Judge Nancy Gertner’s courtroom is an orderly, even stately place, brightly lit and impeccably arranged. The judge likes things to run smoothly. This morning, for example, several courthouse staff spent a good half-hour lining up the technology so that when the time comes to play the ‘evidence,’ a series of allegedly pirated songs, they play on cue.

The case in question pits the music recording industry, a phalanx of blue-suited lawyers and expert witnesses, consultants, and corporate executives, against Joel Tennenbaum, a twenty-something grad student who did what most other folks his age do: he ‘illegally’ downloaded hundreds of his favorite songs and–gasp!–shared them. For this ‘infringement’ the industry hopes Gertner and the jury will order him to pay hundreds of thousands of dollars in ‘damages.’ Aligned with Tennenbaum is Harvard law professor (and my good friend) Charlie Nesson, an affiliated local law firm, the Bill of Rights, and possibly, depending on how the case reaches the jury, a populist streak in the American consciousness that doesn’t like to see big corporations use the courts to push ordinary folks around. But the road to that jury hearing passes through Judge Gertner.

The Judge, who described herself from the bench as a “creative judge,” is known as something of a maverick, even a bit of a leftie, none of which was in evidence during this morning’s pre-trial maneuvers. She displayed a primary allegiance to the institution of the law, which she referred to as “these four walls,” and insisted that the case had to be trimmed to fit its dimensions. She declared her interest in keeping the various issues in “the right boxes,” which could prove an impediment to Tennenbaum’s defense. To be specific, the doctrine of “Fair Use”–what an ordinary person might think was appropriate use of song files given the available technologies and habits of file-sharing–rests at the center of Tennenbaum’s defense. But Gertner suggested she might relegate this argument not to the trial itself but to the box marked “damages.” If she does so, Tennenbaum loses the chance to prove that he is not a thief, a ‘pirate,’ but an ordinary non-commercial music listener. In effect, Gertner’s rage to order may exclude Nesson’s larger vision of what is equitable in this case.

I had a chance to hear a bit of that larger view this morning, as Nesson argued for a conception of the law as circumscribed, both theoretically and historically, by liberty. It is this elegant appeal to a higher principle–to a notion of popular sovereignty, in stark contrast to the plutocratic firepower assembled on behalf of the plaintiffs–which might well inspire a jury to see the larger interest in the case. We all have a stake in this vision of cyberspace as public space, of the internet not just as a field for online commerce, a profit center, but a public square where ideas–and yes, songs–can be freely exchanged. The recording industry and its gunslinger lawyers would like to mount Tennenbaum’s head on a pike, as a warning to the rest of us. If Gertner insists on her narrow view of the case, overruling Nesson’s visionary one, she may just let them do it.


Cyberspace is a space for sharing. People of all ages, but especially young people, love to share music. Peer-to-peer sharing technology is technology for sharing music. From the first burst of Napster into the lives of the born-digital generation the recording industry’s physical hold on its catalog of copyrighted music was gone. The music was and continues to be out in cyberspace in format sharable for free by anyone with a net connection. That was and is the effect of technological progress, not Joel Tenenbaum’s fault.

When Napster hit, the recording industry turned to its RIAA lawyers to stop the use of internet sharing technology. Napster proved vulnerable to legal targeting because its hub-and-spoke distribution architecture required a central server, and RIAA succeeded in shutting it down. But on its heels came Grokster. Advances in peer-to-peer sharing technology produced new software built on a network architecture of distributed nodes instead of hub-and-spoke(FastTrack/Gnutella). Using this technology a new company, Grokster eagerly appealed to the millions of noncommercial users who had been sharing music using Napster. RIAA failed to stop Grokster, first in the District Court in January 2003, MGM Studios, Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213 (C.D. Cal., 2003), and then again on appeal in the Ninth Circuit February 2004, MGM Studios, Inc. v. Grokster Ltd., 380 F.3d 1154(9th Cir. Cal., 2004). It was at this point that the industry started suing customers (non commercial users), beginning the litigation campaign of which the case against Joel Tenenbaum is example. The prospect of obtaining Supreme Court review and reversal of the Ninth Circuit decision allowing Grokster to stay in business seemed remote. Go after the direct infringers? What else was the industry to do?


Plaintiffs assert: “The law is clear: Defendant’s actions constitute copyright infringement.” (Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment re Defendant’s Fair Use Defense (hereafter “memo”) at 7) They cite their eventual victory in the Supreme Court in Grokster to support their position, MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

The law is not clear that Defendant’s actions constitute copyright infringement. Grokster in no way precludes Joel Tenenbaum’s fair use defense in this case. Grokster conceded that its users were infringing without contesting the issue. The fair use argument advanced here by Joel Tenenbaum was neither presented nor argued to the Supreme Court in any form. Grokster did not directly involve any noncommercial user. None were party to the case. The Grokster opinion, therefore, can have no stare decisis, res judicata or judicial estoppel effect on Joel Tenenbaum. While the opinion characterized peer-to-peer sharing as infringement, the Court did so by assumption, and with no thought of opining on the fairness of lawsuits for massive statutory damages against noncommercial music consumers like Joel Tenenbaum.

Joel Tenenbaum’s fair use defense starts from the proposition that he did nothing wrong: In no sense is he blameworthy. What he did was not unfair. It may be that, at the time, he believed he was acting illegally, but that does not mean that what he did was unfair, or that a jury could not now respond to that defense. If his conduct was fair, it was not in fact illegal, even though he may have believed it to have been illegal at the time. This is because the copyright law has fairness built right into it as the border of its reach in backing up the copyright holder’s legitimate assertion of control.

summary judgment – morning mail + motion to strike palfrey

Forwarded conversation
Subject: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”

From: William Patry
Date: Sun, Jul 19, 2009 at 9:41 PM
To:  nesson at

New comment on your post #1064 “who is the proper decisionmaker on questions of fair use — the judge or a jury”
Author : William Patry (IP: ,
E-mail :  Williampatry at
URL : http://PatryCopyrightBlog
Whois :…
I am not aware of any case holding that where there is a disputed issue of fact on fair use, a jury cannot decide the issue. The occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees). The characterization about fair use being a mixed question of law and fact, which originated I believe with the 11th circuit in one of its early Pacific & Southern v. Duncan cases, concerned only appellate review. Here is a longer discussion (footnotes omitted) of that case from the section Peter Friedman cited my from treatise (thanks Peter!)

“In Harper & Row, Publishers, Inc. v. Nation Enterprises,
the Court, citing as the only authority the Eleventh Circuit’s
opinion in Pacific & Southern Co. v. Duncan,2 stated:
Fair use is a mixed question of law and fact , Pacific &
Southern Co. v. Duncan . . . Where the district court has found
facts sufficient to evaluate each of the statutory factors, an ap-
pellate court “need not remand for further fact finding . . .
[but] may conclude as a matter of law that [the challenged
use] [does] not qualify as a fair use of the copyrighted work.”

This modest statement has, unfortunately, been grieviously ously misunderstood and, as a result, applied in unintended
ways. Pacific & Southern Co. was an appeal from a bench
trial. What motivated the Eleventh Circuit’s characteriza-
tion of fair use as a mixed question of law and fact was its
conclusion that the district court had engaged in an errone-
ous interpretation of the law by refusing to analyze fair use
under the second, third, and fourth statutory factors—rely-
ing on a mistaken judgment that a failure to make a produc-
tive use under the first fair use factor ended the fair use
inquiry.The court of appeals, noting the statute’s use of the
mandatory term “shall” in directing courts to examine all
four statutory factors, ruled the district court acted contrary
to the statute by analyzing the use only under the first
factor . The court of appeals nevertheless affirmed the
district court’s rejection of fair use because as a result of the
bench trial, the district court had already found the facts,
and the court of appeals needed only to apply the correct
legal standard. Pacific & Southern thus involved a run-of-
the-mill legal problem: the court of appeals, interpreting a
statute, held that “shall” means “must,” and thus found legal
error in the trial court’s refusal to evaluate the use under all
four factors as commanded by Congress. But as all fact finding had occurred, there was no need for a remand.
Harper & Row’s statement, citing Pacific & Southern that
fair use is a mixed question of law and fact, should therefore
be applied solely to appellate review of erroneous applica-
tions of law. Where the district court has correctly applied
the relevant law, or a jury has decided the issue under proper
instructions, the standard of review is the clearly erroneous
standard. Any other approach would be inconsistent with
the right to a jury to decide fair use, a right recognized by all
circuits, including the Eleventh.

You can see all comments on this post here:…

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From: Charles Nesson
Date: Sun, Jul 19, 2009 at 9:45 PM
To:  Williampatry at

thanks. glad to have such well-grounded support

when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

From: William Patry
Date: Mon, Jul 20, 2009 at 7:29 AM
To:  nesson at

Hi Professor Nesson, thanks for having such an open forum. By the way, I have a new book coming out in about three weeks (the date is off) I think will interest you (you are quoted on page 29 for your “urban legend” remarks in the Tenenbaum case).

It’s called “Moral Panics and the Copyright Wars”. Here’s the link:….

The book is about how language and power have been misused to perpetuate bad business models. I am happy to send you electonic files if you like. I am giving a talk on it October 9th at the Harvard Bookstore 3 pm Friday Forum.

Best regards
Bill Patry

— On Sun, 7/19/09, Charles Nesson wrote:

From: Charles Nesson
Subject: Fwd: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”
To:  Williampatry at
Date: Sunday, July 19, 2009, 9:45 PM

From: Charles Nesson
Date: Mon, Jul 20, 2009 at 7:36 AM
To: William Patry
Cc: William Fisher

thanks. terry fisher sent me some of the proofs that he thought relevant to the issue, left it to me to decide whether i needed your permission to use them.

Defendant has designated John Palfrey as an expert witness to provide testimony
concerning children’s understanding of the concept of “fair use” under copyright law, how
children should be educated regarding fair use, and an explanation of the behavior of so-called
“digital natives” regarding creativity and copyrights. [snip] this testimony
has no conceivable relevance to any claim or defense in this case and, therefore, must be

mmm, what conceivable relevance could how children learn about what they must not do on a computer be to the fairness of punishing a child to teach a lesson

when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.