Feeds

US judge excoriates Harvard team's P2P defense

Affirms $675,000 fine for 30 shared songs

Beginner's guide to SSL certificates

As expected, a federal judge has affirmed a $675,000 fine against a graduate student for illegally sharing 30 copyrighted songs. What came as a surprise were the unusually harsh words the jurist had for the defendant's attorney.

In an opinion published Monday, US District Judge Nancy Gertner excoriated Charles Nesson, co-founder of Harvard University’s Berkman Center for Internet and Society, who along with a team of students stepped in to save Joel Tenenbaum in a suit that originally accused him of sharing 800 songs over peer-to-peer networks.

Admitting she was "deeply concerned" by such file sharing suits, Gertner practically bent over backwards to allow Nesson to rebut the charges with arguments that Tenenbaum's actions fell under fair use exemptions to copyright. Instead, what she got "can only be described as perfunctory," she wrote.

"Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment," she continued. "It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent."

Fair use has long been an instrument of defense teams fighting charges of copyright infringement. The doctrine identifies instances of the copying - such as whether it was non-commercial, used in a parody protected by the First Amendment or for educational purposes - that exempt a person from infringement claims. Over the record label's strenuous objections, Gertner permitted Tenenbaum's legal team to present the fair-use defense.

What they presented was largely limited to the argument that the file sharing was for Tenenbaum's private enjoyment and that of his friends, a proposition that lacked the kind of public benefit contemplated by fair use, Gertner said. They also claimed that copyright law doesn't protect the labels from an outdated business model," an argument that had no basis in the doctrine.

She also faulted Nesson by name for taping record company lawyers without permission "and in violation of law."

Gertner's words have largely been received as a well-deserved rebuke of an elite team whose bungling of a legal case cost its client a six-figure judgment. In the words of blogger Ben Sheffner:

"Judge Gertner's order is one of the harshest assessments of an attorney's performance in a civil case that I've ever seen. She leaves absolutely no doubt that she believes Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, did a terrible job."

But Wired.com's Threat Level is more forgiving, arguing that Nesson and team had to go to trial with the case they had, not the case they wished they had.

"A civil trial isn’t a debate match, in which theories or principles are bandied about in a vacuum," writer David Kravets wrote. "Nesson crafted an all-encompassing fair use defense, because it was the only kind that would cabin Tenenbaum’s admitted behavior."

According to IDG News, Nesson has vowed to seek a retrial on the grounds his client's file-sharing activities occurred before digital music could be purchased legally in MP3 format. Gertner said that copyright scofflaws "who used new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets," could be eligible for fair-use exemptions.

That seems to be an equally thin reed on which to hang a fair-use defense. But at least the argument is narrowly tailored to the facts of the case, which is more than one can say about Nesson's previous defense. ®

Intelligent flash storage arrays

More from The Register

next story
I'll be back (and forward): Hollywood's time travel tribulations
Quick, call the Time Cops to sort out this paradox!
Musicians sue UK.gov over 'zero pay' copyright fix
Everyone else in Europe compensates us - why can't you?
Megaupload overlord Kim Dotcom: The US HAS RADICALISED ME!
Now my lawyers have bailed 'cos I'm 'OFFICIALLY' BROKE
MI6 oversight report on Lee Rigby murder: US web giants offer 'safe haven for TERRORISM'
PM urged to 'prioritise issue' after Facebook hindsight find
BT said to have pulled patent-infringing boxes from DSL network
Take your license demand and stick it in your ASSIA
Right to be forgotten should apply to Google.com too: EU
And hey - no need to tell the website you've de-listed. That'll make it easier ...
prev story

Whitepapers

Designing and building an open ITOA architecture
Learn about a new IT data taxonomy defined by the four data sources of IT visibility: wire, machine, agent, and synthetic data sets.
The total economic impact of Druva inSync
Examining the ROI enterprises may realize by implementing inSync, as they look to improve backup and recovery of endpoint data in a cost-effective manner.
A strategic approach to identity relationship management
ForgeRock commissioned Forrester to evaluate companies’ IAM practices and requirements when it comes to customer-facing scenarios versus employee-facing ones.
Reg Reader Research: SaaS based Email and Office Productivity Tools
Read this Reg reader report which provides advice and guidance for SMBs towards the use of SaaS based email and Office productivity tools.
Business security measures using SSL
Examines the major types of threats to information security that businesses face today and the techniques for mitigating those threats.