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1UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS_____________________________________)CAPITOL RECORDS, INC.,
et al.
, ))Plaintiffs, ) Civ. Act. No.) 03-CV-11661-NGv. ) (LEAD DOCKET NUMBER))NOOR ALAUJAN, ))Defendant. )_____________________________________ )_____________________________________)SONY BMG MUSIC ENTERTAINMENT,
et al.,
))Plaintiffs, ) Civ. Act. No.) 07-CV-11446-NGv. ) (ORIGINAL DOCKET NUMBER))JOEL TENENBAUM, ))Defendant. )_____________________________________ )
 MEMORANDUM OF LAW TO SUPPLEMENT DEFENDANT'S OPPOSITION TOPLAINTIFFS' MOTION FOR SUMMARY JUDGMENT RE DEFENDANT'S FAIR USEDEFENSE
Cyberspace is a space for sharing. People of all ages, butespecially young people, love to share music. Peer-to-peersharing technology is technology for sharing music. From thefirst burst of Napster into the lives of the born-digitalgeneration the recording industry's physical hold on its catalogof copyrighted music was gone. The music was and continues to beout in cyberspace in format sharable for free by anyone with a
Case 1:03-cv-11661-NG Document 890 Filed 07/20/2009 Page 1 of 11
 
2net connection. That was and is the effect of technologicalprogress, not Joel Tenenbaum's fault.When Napster hit, the recording industry turned to its RIAAlawyers to stop the use of internet sharing technology. Napsterproved vulnerable to legal targeting because its hub-and-spokedistribution architecture required a central server, and RIAAsucceeded in shutting it down. But on its heels came Grokster.Advances in peer-to-peer sharing technology produced newsoftware built on a network architecture of distributed nodesinstead of hub-and-spoke (FastTrack/Gnutella). Using thistechnology a new company, Grokster eagerly appealed to themillions of noncommercial users who had been sharing music usingNapster. RIAA failed to stop Grokster, first in the DistrictCourt in January 2003,
MGM Studios, Inc. v. Grokster, Ltd.
, 269F. Supp. 2d 1213 (C.D. Cal., 2003), and then again on appeal inthe Ninth Circuit February 2004,
MGM Studios, Inc. v. Grokster Ltd.
, 380 F.3d 1154 (9th Cir. Cal., 2004). It was at this pointthat the industry started suing customers (non commercialusers), beginning the litigation campaign of which the caseagainst Joel Tenenbaum is example. The prospect of obtainingSupreme Court review and reversal of the Ninth Circuit decisionallowing Grokster to stay in business seemed remote. Go afterthe direct infringers? What else was the industry to do?
Case 1:03-cv-11661-NG Document 890 Filed 07/20/2009 Page 2 of 11
 
3
I. GROKSTER 
 
Plaintiffs assert:
“The law is clear: Defendant's actionsconstitute copyright infringement.” (Memorandum of Law inSupport of Plaintiffs' Motion for Summary Judgment reDefendant's Fair Use Defense (hereafter “memo”), Doc. No. 872,at 7.)
 
They cite their eventual victory in the Supreme Court in
Grokster 
to support their position,
MGM Studios, Inc. v.Grokster, Ltd.,
545 U.S. 913 (2005).The law is not clear that Defendant’s actions constitutecopyright infringement.
Grokster 
in no way precludes JoelTenenbaum’s fair use defense in this case.
Grokster 
concededthat its users were infringing without contesting the issue. Thefair use argument advanced here by Joel Tenenbaum was neitherpresented nor argued to the Supreme Court in any form.
Grokster 
 did not directly involve any noncommercial user. None were partyto the case. The
Grokster 
opinion, therefore, can have no
staredecisis
,
res judicata
or judicial estoppel effect on JoelTenenbaum. While the opinion characterized peer-to-peer sharingas infringement, the Court did so by assumption, and with nothought of opining on the fairness of lawsuits for massivestatutory damages against noncommercial music consumers likeJoel Tenenbaum.
Case 1:03-cv-11661-NG Document 890 Filed 07/20/2009 Page 3 of 11
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