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Court Says Fair Use May Hold In Some RIAA Cases 145

Posted by timothy
from the generosity-knows-no-bounds dept.
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."
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Court Says Fair Use May Hold In Some RIAA Cases

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  • by plover (150551) * on Wednesday December 09, 2009 @02:58PM (#30379536) Homepage Journal

    I didn't think a court could render an opinion if it's not on the case before it. If a future case involving "space shifting" comes before the court, will they look to this ruling as precedence, or will it be treated more like an amicus curiae brief?

    • by glrotate (300695) on Wednesday December 09, 2009 @03:10PM (#30379688) Homepage

      Courts can bloviate all they wish. You're confusing two legal concepts: The case and controversy requirement, and dicta.

      A court requires an actual case with actually adverse parties.* This is the case and controversy requirement.

      That said, courts can bloviate all they wish. The fancy legal term is dicta. It is not binding on any court, not even the same Court. Sometimes distinguishing between the real opinon and dicta can be tricky.

      However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.

      • by ral8158 (947954) on Wednesday December 09, 2009 @05:09PM (#30380914)
        Of course, there are always exceptions. For example, Jane Roe had already given birth by the time of the ruling in Roe v. Wade, so her case was moot. The Supreme Court made a decision anyway, because it would be difficult to complete a court case during the period of a woman's pregnancy.
      • 'Bloviate': such a perfectly cromulent word! How could it be that this is the very first time I have ever seen it?

        Kudos, glrotate! To bring such a rare and wonderful word out of the obscure depths of ancient dictionaries and set it glittering before all the Intarwebs is a marvelacious deed, indeed!

    • by sys.stdout.write (1551563) on Wednesday December 09, 2009 @03:13PM (#30379722)
      You are correct in your statement that Article III Section 2 prevents courts from rendering advisory opinions, i.e. judgements on controversies not before the court. However, courts are free to offer opinions in dicta which can guide, but are not binding, to future cases. This is all that this was.
      • Re: (Score:3, Informative)

        Here is the Wikipedia [wikipedia.org] entry describing this in more detail.
        • by plover (150551) *

          Thank you. While I knew there had to be something, I didn't know what the legal framework was for handling this kind of stuff.

      • Re: (Score:3, Insightful)

        by Sirusjr (1006183)
        Except I didn't need the court to suggest to me it might be legal to rip my music off CDs I purchased to whatever format I choose. If some law made it illegal then there is something wrong with the law.
    • They typically can't, but it's a question of how it was worded. If they said, "We decline to comment on whether making .mp3 copies for space-shifting constitutes fair use; it may or it may not, we're not going to decide this issue today," then that's fine.
    • The court's thoughts here are what's called "dicta" (as opposed to the "holding"). While a holding is binding precedent, dicta is merely "persuasive". So, if a space shifting case were to come before another court in the same jurisdiction, they would feel some pressure to comport with this court's way of thinking, but could ultimately decide to ignore it of they disagreed.

    • by IP_Troll (1097511) on Wednesday December 09, 2009 @03:28PM (#30379844)
      You are confusing a number of concepts.

      1. Precedence can only be set by a court higher than the court you are presently in. Even the same judge can ignore the way he ruled on an identical case. This judge was essentially outlining all the loop holes that the defense could have used but didn't, essentially outlining every way in which the defense's lawyer failed to make a convincing argument and creating a road map for lawyers who deal with a similar case in the future.

      2. Amicus curiae is a brief, submitted to an appellate court, which deals with to a specific issue in a case, tailored to the facts of the present case to persuade the court to rule in favor the the amicus curiae's position. The case today is not an amicus curiae because it was not written to the facts of a case presently being decided by a court, it is about a case that happened in the past.

      This case is a good road map for defendant's attorneys to learn what not to do.
    • I wish the court would render an opinion against the retarded trend of inventing hip new names for stuff. "Space shifting"? Seriously?
    • It's not precedent for at least two reasons. First, district courts are the low courts on the totem pole--there is no one below for them to set precedent for! Second, the court's writings on what might have been are what is called in legal circles "dicta". That's writings by the court that are not part of the actual legal decision or the supporting reasoning. Think of dicta as being the court giving its personal thoughts or opinions.

  • Without reading the order, it sounds like the Court got it right.
    I.e. the damages question is a tricky one and excessive damages are to be guarded against, attorney's fees shouldn't be a slam dunk, and Fair Use exists - however downloading whatever you feel like just to list to on your ipod isn't Fair Use.

    • Re: (Score:3, Insightful)

      by gandhi_2 (1108023)

      I don't see how this is a good thing, making file sharing and fair use synonymous.

      The Court, deeply concerned by the rash of file-sharing lawsuits, the
      imbalance of resources between the parties, and the upheaval of norms of behavior brought on
      by the internet, did everything in its power to permit Tenenbaum to make his best case for fair
      use. Over the record companies’ strenuous objection, the Court allowed the fair use defense to
      be added at the eleventh hour.

      Making a small clip of a copyrighted work so the work could be discussed is one thing, but at the last minute when you are loosing to cry "fair use" looks disparate and only makes fair use a future target.

      • by mcgrew (92797) *

        Sorry if it seems like I'm picking nits, (I do understand that you meant "losing", damned keyboards..) but did you mean desperate when you said "disparate"? Damned spell checkers, mistype a single key and the spell checker "corrects" it with the wrong word. Is that what happened? I hate it when that happens to me. And if you did indeed mean "disparate" could you explain?

    • Re: (Score:2, Interesting)

      by Taibhsear (1286214)

      Downloading whatever you feel like just to list on your ipod is completely legal in the US. UPLOADING the copywritten files is illegal and infringement of copyrights. This is a very important difference that the RIAA doesn't want you to realize.

  • by Anonymous Coward on Wednesday December 09, 2009 @03:05PM (#30379624)

    Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there.

    http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars [arstechnica.com]

    This isn't something that applies to all future cases.

    • by pdabbadabba (720526) on Wednesday December 09, 2009 @03:20PM (#30379764) Homepage

      Right, of course the key fact that Ars ignores is that the defenses that the court says it would have been receptive to were incompatible with the actual facts of the case.

      • Re: (Score:3, Insightful)

        by Znork (31774)

        The court also shows a certain naivete: "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court,"

        As we have come to understand, copyright law is written by lobbyist organizations and entered into as treaties. 'Congress' or 'public benefit' basically does not figure into the equation.

        • by pdabbadabba (720526) on Wednesday December 09, 2009 @03:45PM (#30380016) Homepage

          That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?

          That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.

        • by Kjella (173770)

          What did you expect, seriously? A mutiny of the courts? A political jab at the election process or the parties and congressmen and senators? They are parts of the checks and balances but they couldn't rebel against the system without breaking the division of power. Courts refusing to enforce copyright law despite Congress being, at least in some form, explicitly granted the authority in the constitution would break the most fundamental rules. You might as well have the President issuing laws by decree and C

    • by pitchpipe (708843)
      Just call this a [painfully slow] outbreak of common sense.
    • Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there

      So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer? Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?

      The focus of any court should be to give the defendant the lightest possible sentence they conscionably can. If the US shifted its focus back to that, we'd improve the state of healthcare and discipline. Barratry wouldn't be so ridiculously prevalent, and more people could do the Ri

      • Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?

        I hope that that someone will actually read the opinion rather than accept an anonymous slashdot poster summary of what it says.
      • by TLLOTS (827806) on Wednesday December 09, 2009 @04:24PM (#30380356)

        Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there

        So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer?

        No, the point highlighted in the above article is that instead of making a case for specific types of fair use that might be applicable, the defendants lawyers tried to argue rather broadly that all downloading was fair use, something that the judge couldn't possibly find in favour of. In essence the judge said that they were open to certain arguments being made, but the defendant never tried to make them and instead opted for a bat-shit crazy defense coupled with irresponsible and outright illegal conduct. It's not hard to see why Tenenbaum wound up getting the judgement that he did.

  • by bugi (8479) on Wednesday December 09, 2009 @03:07PM (#30379646)

    I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?

    • Re: (Score:3, Insightful)

      by kharchenko (303729)

      Exactly. But now it "might constitute fair use" ... and in a year or so it will be "unlikely to constitute", etc. Progress!

    • by sjames (1099) on Wednesday December 09, 2009 @03:27PM (#30379842) Homepage

      The question of if you have the CD but rather than ripping it, you download an already ripped mp3.

      • If you download an already-ripped mp3 when you already own the CD and could have ripped and encoded it yourself, could your action be found fair use, yet the actions of the site who provided you the mp3 be found as infringing? I love the bizarro world of copyright infringement, where for example a bit is more than just a 1 or 0 [sooke.bc.ca].
      • Re: (Score:3, Interesting)

        by sorak (246725)

        If that were found to be valid precedent, then that would mean that it was legal to download a copy of a DVD that you currently own from a foreign torrent site? I assume that you wouldn't be violating the DMCA's circumvention clause...

    • by bhmit1 (2270) on Wednesday December 09, 2009 @05:40PM (#30381358) Homepage

      As other's have mentioned, the first question is it fair use to download an mp3 of a cd/song that you have already purchased?

      But, there's yet a further step, where time-shifting is allowed in the TV/video world for recording on a VCR. I presume that same shifting is permitted for recording off of the radio. Therefore, are you allowed to download/posses an mp3 of a song that you heard on the radio?

      There's a slippery slope that I don't think we should say anyone can download content that's been played on some radio station at some point, but a lawyer would have a difficult time claiming that you hadn't already heard a collection of top-40 songs. And this also wouldn't excuse someone that turns around and shares the content with others.

  • Don't ever take a judge's advice and allow Charles Nesson to be my legal counsel.

  • Judge: "Fair use might be a justifiable defense, but we find for the platiff to the tune of $625k."

    Defense Council: "YAAAAAY! Wait a flippin second..."
    • Re: (Score:3, Informative)

      by LOLLinux (1682094)

      The judge never said that fair use would be a justifiable defense for the case at hand, but that for some future case it could be a justifiable defense.

      • Like if you run out and buy all of the CDs you infringed, and then appealed the ruling to a higher court?

        Its gotta cost less than $625k

        • by MiniMike (234881)
          More like he would have had to run out and buy CDs for all the people who downloaded the mp3s from him. Probably still less than $625k. Still not quite what they mean though.
  • by ZorinLynx (31751) on Wednesday December 09, 2009 @03:35PM (#30379902) Homepage

    It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.

    It's insane that any individual can be expected to pay $625,000 unless they are wealthy.

    The ability for the defendant to pay should be considered when damages are decided. Our legal system is so seriously screwed up.

    • by cdrguru (88047)

      Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.

      I can rip a song from a CD or a movie from a DVD and make it available to the planet for downloading. Unless I keep some kind of records, it is impossible to know how many people have subsequently downloaded it. Let's say it is shared via some P2P software for a day - not many people could have downloaded it in only 24 hours. What if it is available for a year?

      The only calculation possible is

      • Re: (Score:2, Troll)

        by jedidiah (1196)

        > Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.

        Not at all.

        The relevant "art industries" have some idea of what this stuff is worth. They need to be able to evaluate value
        in order to do the "business" part of art. So for ANY bit of "art" whether it is something an unsigned band or
        something that already has as well established track record, the labels or the studios have some idea of what they
        could be losing.

        The CEO Virgin Atlantic doesn't

        • The CEO Virgin Atlantic doesn't just shake a dead chicken while dancing around in a circle mumbling.

          Can you provide proof they dont?

          And what about Sony/BMG? That's clearly how they choose some of their new "artists"...

          ;-)

    • Re: (Score:3, Interesting)

      It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.

      Which allows you to violate copyrights to your heart's content as long as you use a frontman with a net worth of zero.

      Which isn't terribly hard to do, really.

  • from the court decision: A word on process: The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the internet,...

    They're talking about fetish porn, aren't they?
  • by Anonymous Coward on Wednesday December 09, 2009 @03:44PM (#30380006)

    In the USA:

    Unless I am greatly mistaken...in prior court cases, it was accepted on precedent that format shifting for personal use was already covered under fair-use.

    Additionally, although their are some issues regarding the definition of "digital audio recording device", making a copy of a digital audio CD for private non-commercial use using a "digital audio recording device" (computers are specifically NOT covered under this) is EXEMPT from prosecution or litigation under the 1992 Audio Home Recording Act. Under the terms of the act, the industry specifically gave up all rights to litigation and or fines imperpetuity for any non-commercial analog copying and/or approved digital audio device.

    Audio CD recorders and DAT recorders are specifically addressed by this and are approved devices. An audio CD recorder or standalone DVD recorder capable of ripping direct to MP3 would almost definitely be covered as well (e.g. I have a DVD DVR with an internal hard drive that has the capability to buffer a CD to it's internal hard drive and then reburn it to a new CD after transcoding it into MP3 format). As long as any audio device complies with the SCMS (Serial Copy Management System) and refuses to make copies of 2nd generation material (i.e. copies of copies) then the device is legal.

    The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.

    The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).

    A very interesting question in the law would be on the following device -- of which one does exist but was never publicly released:

    1) A standalone CD-Audio/DVD Recorder/DVR unit with network capability capable of ripping to MP3. This unit *was* an approved CD-Audio Recorder and was legal for making audio cd copies.
    2) This unit fully complies with SCMS and flags any recorded MP3's with the copyright flag and will refuse to reburn second generation copies or copies that did not originate on the unit that have the copyright flag set.
    3) This unit was network capable -- although the released design was originally intended for sharing DVR material to other similar players within the same household.
    4) As a network capable device with a hard drive, in an unreleased version a Gnutella network client was implemented on the device. This allowed sharing of MP3's ripped onto the device and allowed downloading MP3's off of the internet.
    5) In compliance with SCMS, the unit would not burn to CD any downloaded MP3 with the Copyright flag set. Any downloaded file without the Copyright flag set could be burned with impugnity (under the 1992 AHRA players are required to copy media without the copyright flag freely -- the burden of having this flag set correctly was specifically forced outside of the player).

    Basically, under current law, this device would probably have been a considered completely un-litigatable network file sharing device. Unfortunately, the base device itself is no longer produced and the "interesting" version was considered too much of a lawsuit magnet to even attempt releasing.

    • The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.

      Diamond v. RIAA got into this, and found that computers break the chain of AHRA-compliance. Thus MP3 player manuf

  • I don't think everyone will be happy until a court rules that downloading everything that can be is "fair use", because the quality of MP3's is only "fair" and after they are downloaded you really can't use them for very much.

    • by MiniMike (234881)
      Do you thus think that downloading high-bitrate MP3's should be illegal? What about ogg vorbis files? What if I download high-quality files but listen to them on a cruddy stereo? Agreed that you can't use MP3's for much- other than listening to them. Which is pretty much all the functionality they're intended to have. I also agree that everyone would like to get whatever they want for free, but I don't follow your logic. Additionally, I think a careful reading of these cases reveals that the charges a
    • by jedidiah (1196)

      ...which is perfectly consistent with the previous 50 years of being able to get music for free.

      You condition the consumer to the expectation that they can get entertainment for free then they are bound to continue thinking that.

      It's just that now most any form of "broadcast" is also a "download". That's just the evolution of technology.

  • Oh Tenenbaum, oh Tenenbaum,
    your legal team is awesome.
    Oh Tenenbaum, oh Tenenbaum,
    your legal team is awesome.
    With fair use, you may see
    a chance for copyright victory.
    Oh Tenenbaum, oh Tanenbaum,
    your legal team is awesome.

  • If I'm not using a copyrighted work to make money, even indirectly, it should be fair use.
    Absolutely, if I'm using your copyrighted work for profit, I need to have made a deal with you, first, fair cop.  But otherwise, fair use needs to be greatly expanded (and will be sooner or later, it's just a question of how much pain we all suffer in the meantime because of these retards.  Seriously, it's been over a decade and they still haven't figured it out).
  • "E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."

    You mean in the land of the free you do not have the right to use the media content you bought in any way you like in any device you own.

    Only in Canada you say. Pitty.

    No wonder the **AA hate us so much.

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