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US judge excoriates Harvard team's P2P defense

Affirms $675,000 fine for 30 shared songs

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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 They also claimed that copyright law doesn't protect the labels from an outdated business model," an argument that had no basis in the doctrine.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. ®

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