Blog Ipsa Loquitur

Published on under The News

Jammie Thomas isn’t the only file-sharer to choose to litigate her defense. While it’s true that most people the RIAA sues for copyright infringement elect to settle (or point out that they don’t own a computer, or that they’re dead), a graduate student named Joel Tenenbaum has just finished litigating his defense in a civil copyright suit against the RIAA.

I think it’s safe to say that it could have gone better. A few weeks back, I wrote about JNOVs, noting that

…when a judge overrules a jury, and issues a verdict notwithstanding the jury, she is not deciding issues of fact. The judge is not permitted to decide that a witness is lying, or that there’s simply no way Billy’s alibi could be true. (As always in our legal system, there are exceptions…)

The Joel Tenenbaum case is a sterling example of a judge being permitted to direct a jury’s verdict. Mr. Tenenbaum testified that he willfully downloaded the songs in question willfully, and that he infringed on the copyright of the RIAA in doing so. When the defendant testifies under oath that he has satisfied all the elements of the crime or tort in question, there are no more issues of fact to be resolved. If there aren’t any issues of fact for the jury to decide, the judge may direct a jury which party the should return a verdict for.

That’s precisely what Judge Nancy Gertner did. While she refused to rush into a directed verdict, after carefully reviewing the transcript of Mr. Tenenbaum’s testimony, Judge Gertner granted the RIAA’s motion for a directed verdict. The jury then decided that $675,000 for 30 songs was just about fair, meaning that the cost of downloading a single song is $22,500. At that price, iTunes starts to seem like a bit of a bargain.

Some commenters have expressed outrage at the verdict, but the fact is that there are lots of things you can do that receive disproportionate penalties. Speeding tickets, littering tickets, parking at expired meters, and even some of a medical malpractice judgments are all good examples of disproportionate penalties for pissing off society. Deterrents are supposed to be disproportionate. That’s why they deter.

Really, once Mr. Tenenbaum’s fair use defense was rejected (before the trial began), the result was largely a foregone conclusion. The only real question was how severe the damages would be: the statute provides for anywhere between $750 and $150,000 in damages per song. The damages of $22,500 per song is less than a third of the median $75,375 per song. On the other hand, it is 22,500 times more than it would have cost Mr. Tenenbaum to buy the songs. Even if the RIAA got to pocket half of the price of the songs they sold, they’re getting in damages 45,000 times more than they would have gotten from selling the songs.

Neither the Thomas nor the Tenenbaum cases were cases that the RIAA was in any danger of losing. While Mr. Tenenbaum had a good PR campaign on his side, the fact is that he was gambling on the Fair Use defense. It’s hard to see how a judge could give Mr. Tenenbaum the benefit of the fair use defense without completely eviscerating copyright as a whole.

Copyright is, essentially, a monopoly on the fixed expression of an original idea. Do you have a great idea for a play about teenage lovers caught between two warring families? You’d better write it down. What’s that? You say that Bill Shakespeare got there first, like four hundred years ago? Well, then, the parts of your tale of woe that are public domain, like the “teenage lovers caught between two warring families” are probably not going to be protected by copyright law.

But the vulgar limerick that Homey O. recites to melt Daddy Cappy’s heart, and get him to agree to let the two young lovers live in peace? That specific part of your tale could be protected: you could have a monopoly on the use and sale of that limerick. Who knows? It might be compelling.

But your monopoly isn’t absolute. Neither is the monopoly that copyright affords the RIAA over the songs their employees write. The only real avenue for appeal that Mr. Tenenbaum has remaining is the Fair Use defense.

What Even is Fair Use

Fair Use is kind of a “yeah, but” defense: you concede that the plaintiff has a copyright on the stuff in question, but you say that your use was of a harmless or worthy enough nature to fall within the safe harbor of the Fair Use provision of the copyright law.

The four factors are explicit in the text of the act themselves. The “purpose and character” of the use (let’s use Mr. Tenenbaum’s illicit downloading as an example) refers to the infringer’s use of the works in question: was it for commercial or noncommercial purposes? Mr. Tenenbaum wasn’t downloading the songs for the purpose of writing legal scholarship articles on them, however, he isn’t accused of selling bootleg copies of albums he downloaded, either. Society wants reporters and educators to have access to information to share with the rest of us, and the fair use provision reflects that.

The nature of the copyrighted work, in this case, is probably the factual versus expressive distinction (in Harper and Row, it also referred to published versus unpublished works, but that’s irrelevant here). Were the songs Mr. Tenenbaum downloaded factual works, or expressive works? The songs that the RIAA owns are expressive works: creative pieces written to entertain. By contrast, the articles the AP writes are factual reports of historical events. Society has a greater interest in straightforward presentations of facts than musings about muffin tops. Mr. Tenenbaum will be hard pressed to convince any court that society’s interest in “My Humps” should override the author’s copyright. The Fair Use defense works better when you’re trying to share something factual and educational, like an AP article, than it does when you’re trying to share something like My Humps.

The “amount of work used” is pretty obviously not in Mr. Tenenbaum’s favor. He has admitted to downloading the entirety of each song in the complaint. In cases where you only use a little bit of the work in question, your use is substantially less infringey.

The last factor, “market effect,” is the beginning and end of the argument for most people that don’t know anything about the Fair Use defense. It’s true that if Mr. Tenenbaum’s downloading didn’t do anything to affect the market for legitimate, RIAA-sold copies of “My Humps,” his use seems a lot more fair. However, this is not determinative; in fact, none of the factors individually are determinative.

While the last factor, “market effect,” cuts in Mr. Tenenbaum’s favor (his downloading can’t seriously be said to affect the market in any significant sense), the first three factors all cut against him. With three factors that cut against him, Mr. Tenenbaum’s Fair Use defense will be an uphill one. In a future post, I’ll try to sort out how Mr. Tenenbaum’s appeal will go.