USDC D. Massachusetts, July 27, 2009 (electronic order)

Click here for a copy of the full decision.

  • In copyright infringement action involving peer-to-peer file sharing, court grants plaintiff record companies’ motion for summary judgment on the issue of defendant’s fair use defense and jury awards plaintiffs $675,000 for willful infringement of 30 copyrighted works.

Plaintiff record companies filed a copyright infringement action against the defendant for allegedly sharing over 800 copyrighted songs over a four-year period using several different peer-to-peer platforms. The defendant argued that his use was a fair use, and the plaintiffs moved for summary judgment on the fair use issue.

In an electronic order (with a full opinion to follow), the court granted the plaintiffs’ motion because the defendant failed to meet the burden of identifying disputed facts based on “hard proof rather than spongy rhetoric.” The court held that the defendant proposed a fair use defense “so broad that it would swallow the copyright protections that Congress has created . . . [and he makes] no claim of a transformative use or public benefit sufficient to justify an exception to copyright protections.”

The court also noted that (1) the main purpose of the defendant’s file-sharing was his own private enjoyment and that of his friends, not profit-making; (2) he downloaded entire songs, but not entire albums of music; (3) he did not transform the 30 works at issue in the sense that he added “something new, with a further purpose or a different character”; (4) his file-sharing spanned more than four years and several different software platforms, both before and after this activity was detected in August 2004; and (5) at that time, his file-sharing software made more than 800 songs available for other users to download.

The court said that it could envision certain circumstances in which a defendant sued for file-sharing could assert a plausible fair use defense, for example, a defendant who deleted MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs previously purchased, or who shared files during a period of time before the law concerning file-sharing was clear and paid outlets were readily available. The court also said that it might matter who the defendant shared files with as well as how many and for how long. “But the defendant has offered no facts to suggest that he fits within these categories.”

The only fair use factor for which the defendant raised a serious factual challenge was the effect of his file-sharing on the potential market for or value of the copyrighted works. Although the defendant argued that his file-sharing had not diminished the plaintiffs’ revenue or curtailed artistic creation, he failed to put facts into evidence on which the court could rely. The defendant’s opposition brief did not include any affidavit, expert report, deposition testimony, or other evidence of the kind described by Rule 56(e). Furthermore, the court said it is bound to look at the market for the specific works identified by the plaintiffs and as to this market, a court must consider “whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original.” The plaintiffs argued that continuous, high-volume file-sharing -- offering exact duplicates to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works, and the defendant offered no facts to the contrary.

The court ruled that, based on “the private purpose of this use, the substantiality and lack of transformation, and those additional factors the Court is entitled to consider, the Court holds that Tenenbaum’s alleged infringement was not a fair use.”