Bit Parts

Country Artist's Bankruptcy Filing Not in Bad Faith

The U.S. Bankruptcy Court for the Middle District of Tennessee ruled that country music artist Rissi Palmer didn't file for Chapter 7 bankruptcy to in bad faith avoid a debt for recoupable monies advanced to her by 1720 Entertainment. In re Palmer, 09-01890. Palmer had signed management, recording and songwriting/co-publishing agreements with 1720. Denying 1720's motion to dismiss Palmer's bankruptcy filing, U.S. Bankruptcy Judge George C. Paine II noted that Palmer's “testimony was truthful that she felt like she would be in indefinite servitude to 1720 owing more than $2.7 million in recoupment advances following only marginal success of her first album; her medical bills were in collection; the loan [from Suntrust Bank to settle with Palmer's previous manager] was in default; she was facing eviction from her apartment, and she was struggling to pay her car note and car insurance, and other living expenses. This was a debtor in need of a fresh start, not a debtor acting in bad faith trying to escape 1720 to make [a] break into stardom by another route.” The bankruptcy court added in a footnote that Palmer “is perhaps less well known than [country music artist] Mindy McCready was at the time this court denied a motion to dismiss her case. While the court makes no claim to being prescient, Ms. McCready's career has been in a tailspin ever since her bankruptcy.”

Permanent Injunction Against File-Sharer Tenenbaum Is Limited, But Judge Details Criticism of Fair Use Defense

The U.S. District Court for the District of Massachusetts refused in December to extend a permanent injunction against file-sharing copyright defendant and Boston University student Joel Tenenbaum to prohibit his “promot[ing] ' using the Internet or any online media distribution system to infringe copyrights.” Sony BMG Music Entertainment v. Tenenbaum, 07cv11446-NG. District Judge Nancy Gertner explained: “The word 'promote' is far too vague to withstand scrutiny under the First Amendment. Although plaintiffs [record labels] are entitled to statutory damages, they have no right to silence defendant's criticism of the statutory regime under which he is obligated to pay those damages. This [c]ourt has neither the desire nor the authority to serve as the censor of defendant's public remarks regarding online file sharing.” (A federal jury had assessed $675,000 in statutory damages against Tenenbaum.) In a related order, Gertner noted of Tenenbaum's fair use defense ' which the judge had permitted “to be added at the eleventh hour” before trial last summer but nevertheless barred on the first day:

[T]he [c]ourt was prepared to consider a more expansive fair use argument than other courts have credited ' perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense. 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. ' In his view, a defendant just needs to show that he did not make money from the files he downloaded or distributed ' i.e., that his use was 'non-commercial' ' in order to put his fair use defense before a jury. ' Defendant's version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.

Country Artist's Bankruptcy Filing Not in Bad Faith

The U.S. Bankruptcy Court for the Middle District of Tennessee ruled that country music artist Rissi Palmer didn't file for Chapter 7 bankruptcy to in bad faith avoid a debt for recoupable monies advanced to her by 1720 Entertainment. In re Palmer, 09-01890. Palmer had signed management, recording and songwriting/co-publishing agreements with 1720. Denying 1720's motion to dismiss Palmer's bankruptcy filing, U.S. Bankruptcy Judge George C. Paine II noted that Palmer's “testimony was truthful that she felt like she would be in indefinite servitude to 1720 owing more than $2.7 million in recoupment advances following only marginal success of her first album; her medical bills were in collection; the loan [from Suntrust Bank to settle with Palmer's previous manager] was in default; she was facing eviction from her apartment, and she was struggling to pay her car note and car insurance, and other living expenses. This was a debtor in need of a fresh start, not a debtor acting in bad faith trying to escape 1720 to make [a] break into stardom by another route.” The bankruptcy court added in a footnote that Palmer “is perhaps less well known than [country music artist] Mindy McCready was at the time this court denied a motion to dismiss her case. While the court makes no claim to being prescient, Ms. McCready's career has been in a tailspin ever since her bankruptcy.”

Permanent Injunction Against File-Sharer Tenenbaum Is Limited, But Judge Details Criticism of Fair Use Defense

The U.S. District Court for the District of Massachusetts refused in December to extend a permanent injunction against file-sharing copyright defendant and Boston University student Joel Tenenbaum to prohibit his “promot[ing] ' using the Internet or any online media distribution system to infringe copyrights.” Sony BMG Music Entertainment v. Tenenbaum, 07cv11446-NG. District Judge Nancy Gertner explained: “The word 'promote' is far too vague to withstand scrutiny under the First Amendment. Although plaintiffs [record labels] are entitled to statutory damages, they have no right to silence defendant's criticism of the statutory regime under which he is obligated to pay those damages. This [c]ourt has neither the desire nor the authority to serve as the censor of defendant's public remarks regarding online file sharing.” (A federal jury had assessed $675,000 in statutory damages against Tenenbaum.) In a related order, Gertner noted of Tenenbaum's fair use defense ' which the judge had permitted “to be added at the eleventh hour” before trial last summer but nevertheless barred on the first day:

[T]he [c]ourt was prepared to consider a more expansive fair use argument than other courts have credited ' perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense. 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. ' In his view, a defendant just needs to show that he did not make money from the files he downloaded or distributed ' i.e., that his use was 'non-commercial' ' in order to put his fair use defense before a jury. ' Defendant's version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.