Another interesting revelation from the Joel Tenenbaum case we covered yesterday is that there are some circumstances where downloading copyrighted music could've been considered legal, a federal judge said.
In finalizing a $650,000 jury verdict against convicted file sharer Joel Tenenbaum, judge Nancy Gertner wrote that she would have considered certain arguments for fair use, except that the defense pretty much blew its chances due to broad strokes and bad behavior, Ars Technica reports. In July, Tenenbaum admitted to downloading and distributing 30 songs over the Internet, and the jury hit him with a $22,500 fine for each song.
There are a few situations where Gertner said Fair Use could have been argued for what's normally considered illegal file sharing: She mentions sampling a song before purchase, and "space-shifting to store purchased music more efficiently." Also, Gertner suggested that defendants accused of using Napster or other early peer-to-peer applications might've argued that legitimate options for purchasing digital music files didn't exist yet. Obviously, that argument wouldn't fly in the age of iTunes and Amazon, but as many of the music industry's lawsuits are years-old, there's still room for a defense to make that claim.
Unfortunately, Tenenbaum's defense, headed by Harvard University law professor Charles Nesson, bit off more than it could chew. The defense tried to argue that all non-commercial music sharing should be considered fair use, and Gertner wasn't willing to go there. "Whether the widespread, unlimited file sharing that the record suggests (Tenenbaum) engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court," she wrote.
Also, Gertner slammed Nesson for missing deadlines, ignoring rules and at one point illegally recording of courtroom proceedings and posting them on the Internet.
Too bad. What really interests me here is the potential argument that songs were downloaded as a way of sampling them before purchase. I hear a lot of people say this is their intent when it comes to piracy, so I'd love to see that claim play out in court. However, with Google's integration of tracks from Lala and iLike, and the availability of free streaming from MySpace, that argument could now be outdated.
