Participants in the P2P world have long hoped that courts would recognize that at least some forms of file sharing constitute fair use. In a recent opinion in the Tenenbaum file-sharing case, Judge Gernter of the District of Massachusetts enumerated several unauthorized uses of copyrighted music thinks might constitute a fair use — including file-sharing under certain limited circumstances. While Judge Gertner’s opinions have limited precedential value, they may point to some pathways to legitimacy for the oft-maligned P2P industry.
Joel Tenenbaum was a sophomore at a small college in Baltimore. Like many other students, he used a number of music file-sharing services, including Kazaa, through which he shared songs with other users. In 2007, he was sued by Sony BMG and other recordings company for copyright infringement for sharing 30 songs. One of the defenses that Tenenbaum raised was fair use — a defense which the Judge Gertner rejected in July 2009, shortly before the commencement of trial. As is well-known, trial did not turn out well for Tenenbaum, who was found liable for infringement and statutory damages of $675,000.
On December 7, 2009, Judge Gertner issued a lengthy opinion that provided the full justification for her earlier rejection of Tenenbaum’s fair use defense. See Sony BMG Music Entertainment v. Tenenbaum, D. Mass., Memorandum and Order (Dec. 7, 2009). Judge Gertner began by agreeing with Tenenbaum that the Copyright Code does provide for a fair use defense that applies to all forms of copyrights. See 17 U.S.C. § 107. Judge Gertner noted that the fair use defense was developed by judges “who recognized that the monopoly rights protected by copyright were not absolute.” Where a use did not injure the market for the original work, and advanced a public purpose, such as education or artistic innovation, it could be considered “fair” and not infringing.
When Congress codified the fair use doctrine in Section 107, it set out a list of four, non-exhaustive, factors that a court is require to determine whether a use is fair. These include: (1) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes, (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use on the potential market for or value of the copyrighted work. Courts have added several additional factors.
Purpose and character: Judge Gertner found that the key issue was whether the defendant’s use of a work was “accompanied by any public benefit or transformative purpose.” Tenenbaum argued that file-sharing provides a public benefit by increasing access to copyrighted works. Judge Gertner found that this public benefit was not sufficient, since “nearly every unauthorized reproduction or distribution increases access.” For file-sharing to constitute a transformative use, it would need an effect similar to that held fair in the Betamax case — permitting the use of a work in new way, rather than merely providing users with free copies of works that they could otherwise purchase.