excuse all file sharing for private enjoyment. As the court described counsel’s defense, “a
defendant just needs to show that he did not make money from the files he downloaded or
distributed – i.e., that his use was ‘non-commercial’ – in order to put his fair use defense before a
jury. Beyond that threshold, the matter belongs entirely to the jury, which is entitled to consider
any and all factors touching on its innate sense of fairness – nothing more and nothing less.”^304
The court first turned to the threshold issue of whether fair use is an equitable defense.
Noting that a number of courts had suggested that it is, the court nevertheless opined that even if
fair use is an entirely equitable defense, it is not clear that its determination requires a jury trial,
because judges, not juries, traditionally resolve equitable defenses. However, given that two
leading copyright historians had suggested that the equitable label may be a misnomer, and
because neither party pressed the point, the court assumed that fair use is a jury question, without
resolving the question of the equitable origins of the defense. But because fair use is ultimately a
legal question, the court noted that, in the face of the plaintiff’s motion for summary judgment on
the fair use issue, the defendant could put the defense to a jury only if he showed through
specific, credible evidence that the facts relevant to that legal analysis were in dispute. The
defendant had failed to do so.^305
Turning to an application of the four fair use factors, the court found that the first factor –
purpose and character of the use – favored the plaintiffs. The court rejected the defendant’s
binary distinction between “commercial” and “non-commercial” uses under the first factor,
noting that the purpose and character of a use must be classified along a spectrum that ranges
from pure, large-scale profit-seeking to uses that advance important public goals, like those
recognized in the statute. The defendant’s file sharing fell somewhere in between. Although the
court was not willing to label it “commercial,” as the plaintiffs urged, the court ruled that
because the use was not accompanied by any public benefit or transformative purpose, the first
factor cut against fair use.^306 The second factor – nature of the copyrighted work – also cut
against fair use because musical works command robust copyright protection.^307
The defendant argued that the third factor – portion of the work used – cut against the
plaintiffs because he was alleged to have downloaded only individual songs, but not full albums,
and it was the albums in which the plaintiffs registered their copyrights, while the individual
songs were works made for hire. The court rejected this argument, noting that under existing file
sharing case law, individual songs were regularly treated as the relevant unit for evaluating
infringement and fair use of musical works.^308
With respect to the fourth factor – effect on the potential market for the work – the
defendant argued that his file sharing made little economic difference to the plaintiffs because
(^304) Id. at 221.
(^305) Id. at 223-24.
(^306) Id. at 227-29.
(^307) Id. at 229.
(^308) Id. at 229-30.