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Posted on Thursday, December 17, 2009 at 8:01 pm

Sony BMG Music Entertainment et al. v. Tannenbaum

First Circuit Explains Judgment Against File-Sharer Tannenbaum
By Eric Engle  – Edited by Miriam Weiler

Sony BMG Music Entertainment et al. v. Tannenbaum, Case No. 07cv11446-NG (Dist. Mass., Dec. 7, 2009)
Memorandum and Order

The U.S. District Court for the District of Massachusetts elaborated on its July 27 summary judgment against Joel Tannenbaum, holding that file sharing for personal use was not presumptively fair under the Fair Use doctrine.  In so holding, the court suggested that Tannenbaum could have escaped liability with a more tailored fair use argument, but his expansive argument failed.

The Copyrights and Campaigns Blog provides an overview of the case and its commentary. Ars Technica criticizes the decision as being badly litigated and missing a chance to extend the fair use doctrine to encompass sampling music prior to purchase or space-shifting to store purchased music more efficiently. defends Professor Nesson’s litigation strategy.

In this thirty eight page memorandum explaining the July 27th summary judgment decision, Judge Gertner presents a thorough review of the Fair Use doctrine and indicates her sympathy to Tannenbaum’s predicament. Nonetheless, Judge Gertner found that Tannenbaum’s use failed to be fair under the four statutory factors laid out in Section 107 of the Copyright Act. Judge Gertner also considered a fifth quasi factor regarding the transformative nature of the work and concluded that the file sharing was by no means transformative. Judge Gertner considered and ejected some non statutory considerations for fair use as well, such as the Plaintiff’s acquiescence and abandonment. She found that the plaintiff did not acquiesce to the copying of the works and that abandonment was unavailable because the plaintiff lacked any intent to surrender his rights.

Another legal issue, which the court noted but did not decide, is whether fair use claims are equitable. If fair use claims are claims in equity, not law, then there would be no right to a jury to try the claim because equity is a judicial doctrine to correct unduly harsh effects of the letter of the law.

Procedurally, Nesson’s defense was problematic. Judge Gernter describes the counsel provided by Professor Nesson as “chaotic” and his briefings as “perfunctory.”  The judge also explained that Nesson’s litigation strategy was not the only problem: an amicus brief submitted by Professor Nesson effectively opposed the very theory Nesson advocated as Tannenbaum’s counsel.

Judge Gertner also included some consideration of the impacts of the defense’s theory, explaining that, in her view, if accepted the fair use theory “would simply eliminate the market for digital downloads among individual consumers by transforming all file sharing for private enjoyment into fair use. Who would continue to use the iTunes store or its equivalents, under the circumstances? The Copyright Act grants the plaintiffs an exclusive right to distribute these works; file sharing effectively displaces that right, and the market it represents, by offering the same works for free.”

According to, Tannenbaum has until January 4 to appeal the decision, arguing that the $675,000 damages award is unconstitutional.

RELATED ENTRIES: 1st Circuit Decisions, Copyright, Fair Use, Peer-to-Peer

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