Gambling with other people’s lives: Nesson’s fair use high card a bust

Not to kick a guy when he’s down (although I can’t say as the courtesy has ever been reciprocated), the judge in the Tenenbaum case summed up the fair use analysis of Charlie the Gambler and the entire bunch of poker players from the law school whose name cannot be said:

“Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web,” Gertner wrote. Because of her concern about the imbalance of resources between the music-industry plaintiffs and Tenenbaum, the judge wrote, she did everything in her power to permit him to make his best case for fair use. She was even prepared, she said, “to consider a more expansive fair use argument than other courts have credited.”

But the defendant would have none of it. Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent. … Defendant’s version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.”

When are these people going to start getting the message that they have all (from Google to Tenenbaum) gotten really truly awful advice? How many more cases do they have to lose?

Remember this: Utterly standardless and wholly without support.

Attention law students: Avoid having a judge use these words to describe your work product. You can only do this if you are a tenured professor at that law school.