the songs at issue were immensely popular and therefore widely available on file sharing
networks. The court rejected this as an improper framework for the analysis. Rather, one must
consider the effect on the market of the sum of activity if thousands of others were engaged in
the same conduct. The plaintiffs had provided evidence that the widespread availability of free
copies of copyrighted works on the Internet had decreased their sales revenue, and the defendant
had offered no affidavits or expert report to disprove or dispute that evidence.^309
The court’s opinion contains a few other interesting observations with respect to the
doctrine of fair use as applied to file sharing. First, citing the case of American Geophysical
Union v. Texaco Inc.,^310 the court noted that a fair use determination may be affected by the
availability or absence of authorized ways to obtain the work in question. The defendant
asserted that the emergence of easy-to-use, paid outlets for digital music, such as the iTunes
music store, had lagged well behind the advent of file sharing, and this fact should affect the fair
use analysis. The court responded that, whatever the availability of authorized digital
alternatives was when peer-to-peer networks first because widespread in 1999, it was clear that
by August 2004 – when the defendant’s file sharing was detected – a commercial market for
digital music had fully materialized. In light of that chronology, the unavailability of paid digital
music was simply not relevant to the court’s application of the fair use doctrine.^311
Although granting the plaintiffs’ motion for summary judgment on the defendant’s fair
use 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 so
narrow that they could not encompass some instances of file sharing copyrighted works. This
Court, unlike others that have spoken on the subject, can envision a scenario in which a
defendant sued for file sharing could assert a plausible fair use defense – for example, the
defendant who ‘deleted the mp3 files after sampling them, or created mp3 files exclusively for
space-shifting purposes from audio CDs they had previously purchased.’ (Berkman Center Br. at
36-37, document # 177-3.) The Court can also envision a fair use defense for a defendant who
shared files during a period before the law concerning file sharing was clear and paid outlets
were readily available. ... A defendant who shared files online during this interregnum, sampling
the new technology and its possibilities, but later shifted to paid outlets once the law because
clear and authorized sources available, would present a strong case for fair use.”^312 - “As this Court has previously noted, it is very, very concerned that there is a deep
potential for injustice in the Copyright 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 wrong
with a law that routinely threatens teenagers and students with astronomical penalties for an
activity whose implications they may not have fully understood. The injury to the copyright
(^309) Id. at 230-31.
(^310) 60 F.3d 913, 931 (2d Cir. 1994).
(^311) Tenenbaum, 672 F. Supp. 2d at 235-36.
(^312) Id. at 237-38.