A few hours before jury selection in a high-profile Boston copyright infringement case involving music downloading, U.S. District Judge Nancy Gertner shot down one of the defense team's key legal theories.
In Capital Records Inc. v. Alaujan, several record companies and the Recording Industry Association of America are suing college students in the District of Massachusetts for making illegal Internet music downloads.
In an electronic order on Monday, Gertner wrote that defendant Joel Tenenbaum couldn't cite fair use, the legal use of copyrighted works under certain circumstances, during the trial.
The defense setback closely trails a June $1.92 million verdict for The Universal Music Group, owned by Vivendi, in a similar Minnesota federal case. In the only Internet song downloading case that has reached the verdict stage, the jury decided that Jammie Thomas-Rasset should pay $80,000 for each of 24 songs she posted on a Web site for others to download.
The Massachusetts case defense team, led by Harvard Law School professor Charles Nesson, has also faced other stumbling blocks before having a key argument negated on the eve of trial.
This month, Gertner ordered Nesson to explain why he shouldn't face sanctions for Internet postings of deposition excerpts.
Last month, Gertner rejected Tenenbaum's counterclaims that the record industry's lawsuits to stop parties from downloading and distributing copyrighted works is an "abuse of process" because the campaign has targeted young people with little cash to hire lawyers. Gertner also dismissed Tenenbaum's counterclaims against all the plaintiffs and denied his bid to add the RIAA as a party to the counterclaims.
In April, the 1st U.S. Circuit Court of Appeals reversed Gertner's order allowing webcasting of hearings in the case.
In the recent order, Gertner wrote that Tenenbaum's alleged file sharing doesn't fit into the fair use framework, which allows for transformative or public benefit uses of copyrighted works. "[Tenenbaum] proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created," Gertner wrote.
"Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment."
However, Gertner noted that the defendant could make fair use arguments if the jury ends up debating damages, a move that lawyers believe would help the defendant find relief from the astronomical potential damages of $150,000 per willful infringement of a copyrighted work.
Nesson was busy with trial preparation and unavailable for comment about Gertner's order on fair use. An RIAA spokeswoman said the industry group would "let the decision speak for itself."
Michael Albert, chairman of the litigation group at Boston intellectual boutique Wolf, Greenfield & Sacks, said the ruling wasn't too surprising because fair use law is pretty well established, and Tenenbaum doesn't meet the law's criteria.
Albert, who isn't involved in the case, said, "Tenenbaum is in a pretty difficult position" without the fair use defense because he hasn't argued that he didn't make the downloads.
"Since he didn't deny he did it, I don't see a lot of wiggle room," Albert said. "At this point, it's likely to come down to what kind of damages a jury finds to be reasonable."
Albert also said that Gertner's decision to allow fair use arguments if the case reaches the damages stage suggests that she believes that he's "at least entitled to the view that he thought he had a defense, so perhaps the jury would be more lenient."