Tenenbaum cannot claim fair use, argues RIAA

In the upcoming trial against alleged P2P pirate Joel Tenenbaum, the RIAA attempts to thwart the strategy of the defendant. Two weeks before the start of the trial, that commences the 27th of July, the RIAA has asked the judge for a summary ruling that Tenenbaum’s alleged file-sharing is not an example of “fair use”. This claim is the defendant’s main argument, as it is overwhelmingly evident that file-sharing has taken place.

Tenenbaum and his defence team have never made a secret of file sharing. So, instead of denying file-sharing, the defence team claims file-sharing in this case is permitted under fair use policies in US copyright law. Apart from providing four factors by which fair use can be determined, the law allows additional factors to be brought forward. To this end, Tenenbaum has assembled a list of other factors that he feels should be taken into consideration.

The labels, in an article on Ars Technica find Tenenbaum’s list ridiculous:

"In his recent deposition on fair use issues, Defendant explained that his fair use defense also relies on factors such as how much music he later purchased, whether he discussed his downloads with friends, whether he downloaded a whole album or just one song off of an album, whether he profited from his distribution, his state of mind (i.e., did he know whether it was illegal), the extent to which he 'identified' with a song, whether a song 'expresses' who he is, and whether P2P use benefits 'obscure' songs."

The RIAA argue that fair use is out of the question by stating that:

"No conceivable set of facts exists that would allow Defendant’s unlawful copying and distribution to be considered fair use, and every court to rule on the issue on facts nearly identical to those presented here has rejected any claim of fair use by infringers like Defendant."

If the labels succeed in convincing the judge that fair use does not apply, Tenenbaum’s chances of coming out on top are exceedingly slim.