Westchester entertainment attorney Lisa Fantino thinks music industry needs to sing a new tune to survive

All eyes will be on Boston this week as the recording industry takes on yet another challenge in its ongoing battle for digital copyright infringement.  SONY BMG Music v. Tenenbaum (Dist. of Mass. Civ. Act. No. 07-cv-11446-NG)  Yesterday, in a major blow to the Defendant, Joel Tenenbaum, U.S. District Judge Nancy Gertner dismissed his defense to fair use for the copyrighted songs he allegedly file-swapped on a peer to peer sharing netowrk.  In her decision, Judge Gertner said to buy into Tenenbaum’s argument “proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded copyrighted songs for his or her own private enjoyment.”

The U.S. Copyright law provides a fair use defense which allows someone to use an original work without the copyright holder’s permission under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  Such uses will not be an infringement of copyright pursuant to 17 U.S.C. 107.  However, judicial scrutiny does not end there and certain criteria must be applied under the fair use doctrine.  It’s a four-pronged test of nonexclusive but mandatory factors to be considered by the courts which have great leeway in the breadth of their analysis when balancing the four elements.  The courts will look to:

  1. the purpose and character of the use;
  2. whether its use is for commercial or for nonprofit educational purposes;
  3. the nature of the copyrighted work – the amount and substantiality of the portion used in relation to the copyrighted work as a whole (don’t use more than is necessary to get your point across);
  4. the effect of the use upon the potential market for or value of the copyrighted work (in other words, are you competing in the marketplace for the same commercial attention?).

In the Tenenbaum case, the court was disapppointed that he did not offer specifics to justify allegedly “sharing hundreds of songs over a number of years, far beyond the infancy of this new technology or any legal uncertainty. And in his summary judgment opposition, he has contested few of the facts offered by the Plaintiffs in support of their motion.”  Basically, Judge Gertner said she was ready to listen but Tenenbaum failed to offer any viable support for his actions.

Now, some of you may be wondering what did Tenenbaum do wrong?  All he reportedly did was share some songs, not even entire albums, with a few of his friends?  He didn’t make any money; so what’s the big deal, right?  Wrong.  The Supreme Court, 15 years ago, already determined that “[T]he mere fact that a use is not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.”  Campbell v. Acuff-Rose Music, 150 U.S. 569 (1994)  The Acuff-Rose decision determined that it is but one factor in the four-part test to be weighed.

As to what happens to Tenenbaum in Boston is almost irrelevant to the state of file sharing today.  True,  there are sites like ITunes or Napster and many others which make users pay to download songs but  there are also bands which are giving their tunes away.  The business model of the recording industry has been turned on its head and the industry is now struggling to survive in courts across the country rather than spend its time and resources on reinventing itself.

I am an entertainment lawyer and I see the music business taking its last gasps, the death rattle is near.  Bands today are launching their own careers without the monolithic labels of yesterday.  Today’s musicians are smart enough to embrace the technology rather than fight it.  Their songs are their lifeblood but maybe the bulk of their income will now come more from touring and merchandise rather than from the penny a song royalties they used to earn from the labels.  And, in the end, maybe that’s a good thing.  Too many artists were in debt to the labels to the tune of hundreds of thousands of dollars and would have to tour sometimes for years before they ever broke even.  Now that the playing field has been digitized, maybe musicians finally stand a fair shot at making some money…..maybe that is a fair use.

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