Sony BMG Music Entertainment v. Tenenbaum

Sony BMG Music Entertainment
Tenenbaum (United States District Court, D. Massachusetts)
672 F. Supp. 2d 217

Facts: Joel Tenenbaum was accused of using file-sharing software as a college sophomore to download and distribute 30 copyrighted songs belonging to the plaintiffs. Counsel for the plaintiff moved to amend Tenenbaum’s answer to argue that his file sharing constituted a “fair use” under the Copyright Act.

Procedure: The plaintiffs which were four recording companies, moved for partial summary judgment on the fair use issue, claiming that there was no material facts in dispute and that only a question of law remained for the Court, not the jury, to decide.

Issue: Did Tenenbaum’s downloading of entire songs using file-sharing software to use for his own enjoyment, constitute a “fair use” under the Copyright Act since his use was non-commercial in nature.

Holding: Tenenbaum’s use of the downloaded songs did not warrant a defense of “fair use” in regards to any of the four factors Courts are to look at in fair use cases.

The Court first looked at what constitutes a “fair use” of copyrighted material. The court states that, “Where a use did not injure the market for the original work, and itself advanced a public purpose-like education, commentary, scholarship, or further artistic innovation- it could be considered “fair,” and not infringing. In “fair use” cases courts are to look at four factors that should be considered but the list is not intended to be exhaustive. These four factors are:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and
4. The effect of the use upon the potential market for or value of the copyrighted work.
The Court then says that these four factors suggest a fifth factor which is whether and to what extent the new work is transformative.” When an alleged infringer alters the original work in a way that adds to its literary or artistic value, he engages in precisely the activity that copyright seeks to promote.
The Court focuses on the Supreme Court case MGM studios v. Grokster in which the majority opinion found that “the probable scope of infringement was staggering,” in regard to file swapping and neither concurrence disputed the notion that, “swapping copyrighted works was, as a general matter, unlawful.”
The Court moves on to put file swapping up against the four factor test. It regards to purpose and character that while it was clear that Tenenbaum did not seek profit from his use of a file-sharing network, file-sharing is not far off from the financial gain defined in 17 U.S.C. Section 101 which includes receipt of other copyrighted works. “Downloading new music may have been eye-opening for him personally, but it surely did not carry any public benefit of the kind contemplated by Section 107. The defendant attempts to use the Sony Betamax case but the Court points out that the typical Betamax user, “simply captured a TV program he would have been able to watch for free, so that he could view it at a more convenient time. The file-sharer, by contrast, makes a permanent copy he would otherwise be required to pay for.
In regards to the second and third factor of the test, the Court states that music commands robust copyright protects so both tests favor heavily for the plaintiffs. The Defendant argued that it is an album that is copyrighted and not the individual songs but the Court cites precedent where as little as 8 notes can be copyright protected. It is interesting to note that the Court states that, “Tenenbaum has not claimed that he just sampled individual songs as a prelude to purchasing the full albums on which those songs appeared. That could well present a compelling argument FOR fair use.”
Finally, as for the fourth factor of the test, the Defendant argues that his downloading of a single song does not take away from the expected sales or market for the plaintiffs. The Court responds saying that if thousands of others were engaged in the same activity,… it is the sum of that conduct that matters here. With each download it is infinitely more likely that the copies will circulate and result in a bigger impact- because its elimination of the cost barrier.
The Court states that it is “plain that consumers who regularly pay for music would shift to free downloads if given the chance.”

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