A party who made copies of music recordings and shared them with other parties on a peer-to-peer file-sharing network is not protected by the defense of fair use, a district court ruled. The court concluded that the party's fair use defense could not be presented to the jury because the party had failed to allege any disputed facts that pertained to the issue of fair use, and on the undisputed facts, no reasonable jury could find in his favor on the issue. The court rejected the party's argument that the jury was entitled to broadly consider the party's defense that any non-commercial use is presumptively fair and that the jury was entitled to consider its “innate sense of fairness” in evaluating whether the party's use was fair.

Sony BMG Music Entertainment v. Tenenbaum, 2009 U.S. Dist. LEXIS 112845 (D. Mass. Dec. 7, 2009) Download PDF

Editor’s Note: As the court relates, this opinion memorializes the decision announced from the bench on the eve of the trial on the merits in July 2009, which resulted in a $675,000 infringement verdict against the defendant. The court's opinion is of interest for its suggestion that the fair use defense might be available for some instances of sharing music files, particularly during a prior period when the law pertaining to such sharing was less clear.