Message #193451

[Jenna Bluehut]

Tenenbaum's attorney, Harvard Law School professor Charles Nesson, said Monday that he plans to file a motion for a new trial by Jan. 4.

In a separate memorandum released Monday, Gertner described her reasons for rejecting Tenenbaum's "fair use" defense before the case went to trial in July.

Fair use is a legal doctrine that recognizes that the monopoly rights protected by copyright laws are not absolute. The doctrine holds that when someone uses a creative work in way that does not hurt the market for the original work and advances a public purpose – such as education or scholarship – it may be considered "fair" and not infringing.

Gertner said Tenenbaum acknowledged that a purpose of his song-sharing was so that his friends could enjoy the music – "that is, the very use for which the artist or copyright holder is entitled to expect payment as a reward."

Gertner said that although Tenenbaum's case does not constitute fair use, she could envision a fair-use defense for someone who shared files only during a period before the law concerning file-sharing was clear and before legitimate download services were widely available. She urged Congress to consider changing copyright law. The judge wrote that "there is a deep potential for injustice in the Copyright Act as it is currently written."