Tenenbaum – Def. Appeal Brief & EFF Amicus

While I’m a little late to the game, below is Joel Tenenbaum’s 1st Cir. appeal brief and the amicus filed by EFF.  Prof. Nesson continues to represent Joel, though this brief is far better written than anything submitted by Joel’s defense team during the district court trial.  Its greatest weakness–aside from being completely wrong on the law–is the repeated conflation of non-commercial and personal.  In other words, the brief goes to great lengths to talk about how copying for personal use was never intended to be covered by §504’s statutory damages scheme, which, Nesson argues, is reserved for commercial infringers.  The obvious problem here is that Joel didn’t just make a personal copy.  He made his personal copy available for millions of others to make their own personal copy.  One need look no further than Nesson’s own example from the hearings on the 1971 Sound Recording Act where Rep. Kazen asks, apparently rhetorically, “In other words, if your child were to record off of a program which comes through the air on the radio or television, and then used it for his or her own personal pleasure, this use would not be included under the penalties of this bill.”  Joel Tenenbaum did nothing remotely like what Rep. Kazen is describing.
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The Electronic Frontier Foundation’s amicus brief didn’t make much sense to me.  I mean, I understand the point the brief is making–statutory damages are bad–but I fail to see any attempt to tie the facts of the Tenenbaum case with the outcome EFF presumably wants.
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