Advanced Copyright Issues on the Internet - Fenwick & West LLP

copies of copyrighted works on the Internet had decreased their sales revenue, and the defendanthad offered no affidavits or expert report to disprove or dispute that evidence. 199The court’s opinion contains a few other interesting observations with respect to thedoctrine of fair use as applied to file sharing. First, citing the case of American GeophysicalUnion v. Texaco Inc., 200 the court noted that a fair use determination may be affected by theavailability or absence of authorized ways to obtain the work in question. The defendantasserted that the emergence of easy-to-use, paid outlets for digital music, such as the iTunesmusic store, had lagged well behind the advent of file sharing, and this fact should affect the fairuse analysis. The court responded that, whatever the availability of authorized digitalalternatives was when peer-to-peer networks first because widespread in 1999, it was clear thatby August 2004 – when the defendant’s file sharing was detected – a commercial market fordigital music had fully materialized. In light of that chronology, the unavailability of paid digitalmusic was simply not relevant to the court’s application of the fair use doctrine. 201Although granting the plaintiffs’ motion for summary judgment on the defendant’s fairuse defense, the court concluded with the following two interesting dicta:– “[T]he Court does not believe the law is so monolithic, or the principles of fair use sonarrow that they could not encompass some instances of file sharing copyrighted works. ThisCourt, unlike others that have spoken on the subject, can envision a scenario in which adefendant sued for file sharing could assert a plausible fair use defense – for example, thedefendant who ‘deleted the mp3 files after sampling them, or created mp3 files exclusively forspace-shifting purposes from audio CDs they had previously purchased.’ (Berkman Center Br. at36-37, document # 177-3.) The Court can also envision a fair use defense for a defendant whoshared files during a period before the law concerning file sharing was clear and paid outletswere readily available. … A defendant who shared files online during this interregnum, samplingthe new technology and its possibilities, but later shifted to paid outlets once the law becauseclear and authorized sources available, would present a strong case for fair use.” 202– “As this Court has previously noted, it is very, very concerned that there is a deeppotential for injustice in the <strong>Copyright</strong> Act as it is currently written. It urges – no implores –Congress to amend the statute to reflect the realities of file sharing. There is something wrongwith a law that routinely threatens teenagers and students with astronomical penalties for anactivity whose implications they may not have fully understood. The injury to the copyrightholder may be real, and even substantial, but, under the statute, the record companies do not evenhave to prove actual damage.” 203199200201202203Id. at 230-31.60 F.3d 913, 931 (2d Cir. 1994).Tenenbaum, 672 F. SAupp. 2d at 235-36.Id. at 237-38.Id. at 237.- 60 -