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The web is abuzz with articles regarding the finalized ruling of the SONY BMG Music Entertainment v. Tenenbaum case that was tried in my fine state of Massachusetts. Most coverage is focusing, yet again, on how “unfair” the copyright laws are and how the RIAA is doing evil things, etc etc etc. While I don’t particularly disagree with any of those statements, there is little coverage regarding how there was an interesting memo filed by Judge Gertner, the presiding judge on the case, that details how not only Joel screwed the pooch, but ended screwing the rest of us in the process.

For those of you who not be familiar regarding this case, a Boston University student, Joel Tenenbaum, was caught by one of our favorite four-letter associations, the RIAA, sharing about 30 songs on his P2P client Kazaa. Joel was served and the RIAA began legal proceedings against him giving him the option to settle or go to court. The twist of fate came when Charles Nesson, a legal professor from Harvard University, offered to represent Joel pro bono and fight the case in court. Joel decided to spin the wheel o’ justice and take his chances with a jury.

This is where everything goes crazy. A few weeks before the trial, Tenenbaum, Nesson, and his legal team, apparently after a long night of sipping the “information needs to be free” Kool Aid (that I presume was sent to them straight from RMS‘s secret stash) decided to admit he was sharing the files, make the claim that file sharing was completely legal and that US copyright law was wrong.

Needless to say, this flew like a balloon fabricated a two inch thick plate of steel.

The trial was covered fairly well in various media outlets and various expert witnesses were called to aid Joel’s defense. Long story short, Joel lost, has to pay $675,000 worth of damages, and what could have been a giant step forward for the legal rights of file sharers turned into another reaming of a defendant by the RIAA. I can’t say I was following the trial as much as other folks, but I was keeping an eye on things as it was just such an interesting Hail Mary play. However, as I was watching throughout and after the trial, the statements released by the defense on their website and the in-courtroom drama left me scratching my head. I kept looking at what the defense team was doing and as an armchair lawyer I was often wondering “What are they trying to do? Defend their client to the best of their ability or push for the slight chance that they’ll win and set a legal precendent that torpedos copyright law?” Today it looks like we have our answer.

In her footnote, Judge Gertner said that she was ready to accept a wide array of legal defenses that would have greatly expanded the legal definition of “fair use” and allowed Joel to skate:

“As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited — perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense.”

Yup, you read that right, Judge Gertner just said that she would have not only been OK with downloading music before Joel bought it or ripping CDs for storage, but she would have granted Joel a tabula rasa if he made an effort later move on to a legal way of downloading music. But, for reasons unknown, Tenenbaum, Nesson, and the legal team that apparently needs to go back to law school decided to make claims so overreaching that a Judge /sympathetic to their cause/ had no choice but to dismiss them.

Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent… In his view, a defendant just needs to show that he did not make money from the files he downloaded or distributed — i.e., that his use was “non-commercial” — in order to put his fair use defense before a jury. And every non-commercial use, to him, is presumptively fair. Beyond that threshold, the matter belongs entirely to the jury, which is entitled to consider any and all factors touching on its innate sense of fairness — nothing more and nothing less… Defendant’s version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.

To add insult to injury, in a footnote to her memo Gertner makes mention that Nesson “repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal…” Wow. This guy is a first string Harvard attorney? Remind me if I am taking on an organization that has vast armies of lawyers, the law on their side, and out for blood if I choose a lawyer who’s slightly crazy, it will be one that won’t piss off the Judge. That, or one that will do so in a slightly jovial and entertaining manner with a bevy of snappy one liners like Denny Crane or Alan Shore.

Some have pointed out that this defense may work in other cases. They’re 100% right. However, thanks to Joel blowing it, how many more people are going to take a shot at tripling the money they own for the slight chance that they may get to skate? Also, what are the chances that the case will get another sympathetic judge? I’d say slim. This was, what I would consider to be a fairly rare “perfect storm” of events and I wouldn’t venture to guess if or when it may happen again.

Thanks Joel, I’m sure you’re angry that you pissed away a great opportunity to possibly being able to get off scott free and instead have to pay over just over 13 years of my salary for 30 some odd songs. But just remember, thanks to your legal antics, we’re all pissed that you looked a gift horse in the mouth a blew a great chance to shoring up the rights of millions to use the music they bought legally.