‘Fair Use’ Claim Tossed by U.S. Judge in Illegal-Downloading Case

Charles R. Nesson, a law professor at Harvard University, knew he was going to have a rough day before he got dressed to go to court.

Mr. Nesson is representing Joel Tenenbaum, a Boston University graduate student, who is being sued by Sony BMG Music Entertainment for up to $4.5-million for illegally downloading music. Mr. Nesson had planned to argue in front of a jury that the 30 songs his client had downloaded would fall under “fair use,” since Mr. Tenenbaum downloaded them for personal use.

Although the Recording Industry Association of America had asked a judge to rule as to whether Mr. Nesson could use “fair use” as a defense two weeks ago, the judge waited until hours before the trial to make her decision, which was in the recording industry’s favor.

“He proposes a fair-use defense so broad that it would swallow the copyright protections that Congress has created,” U.S. District Judge Nancy Gertner wrote of Mr. Nesson. She continued by calling Mr. Nesson’s request for a jury to determine the issue of fair use to be “standardless,” saying “the Seventh Amendment does not guarantee the right to a jury trial on every issue, only those that turn on reasonably disputed facts.”

This is not the first time in the trial that the judge has ruled against Mr. Nesson. Earlier this month, she threatened him with sanctions for defying a previous court order that barred him from him posting recordings from court proceedings online. Recordings were available on the Web site of Harvard University’s Berkman Center for Internet and Society, which Mr. Nesson founded. Mr. Nesson had unsuccessfully attempted to have the trial broadcast online. In April the judge had also expressed her displeasure that Mr. Nesson’s students were working alongside him as Mr. Tenenbaum’s legal team.

This morning Mr. Nesson posted about his frustration over the judge’s decision on his Twitter account. “Wham, at 1:37 a.m. of the morning of trial, the judge takes the issue of fairness away,” he wrote. “It just can't be that what joel did was fair.”

The blog Ars Technica predicts the trial will be over within the week, as the judge had previously implied to be her goal.

A Twitter feed for Mr. Tenenbaum’s legal team is being updated throughout the trial. According to the page, jurors are still being selected, and opening arguments should begin today.

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