Joel Tenebaum is one of two individuals who were accused of piracy by the music industry, fought their way through court, and ultimately lost. The other individual is Jammie Thomas. Both face substantial judgments of $675,000 and $1.92 million dollars each. Between the two, Joel's situation probably stands the best chance of achieving the slightest margins of victory.

Why's that? Basically, the judge who ultimately ruled that Joel couldn't argue fair use also pretty much spelled out how he could have mitigated his responsibility in the case by arguing fair use. Unfortunately for Joel, the fair use argument wasn't permitted in the case. The judge threw that option out hours prior to the start of trial, thanks to the "overly broad" arguments that Joel Tenenbaum's defense attempted.

But now Joel and his defense, led by Harvard Law's Charles Nesson, are back. Attempting to rescue Joel from a bankrupting judgment, his defense team has submitted a new motion that attacks the constitutionality of the jury's award. The motion also seems to be taking cue from the judge, and has a strong fair use argument.

Interestingly, the defense also attacks the four major record labels and places some of the P2P blame on them. In the motion, the defense argues that because CDs lacked DRM and other forms of protection, the music industry shares blame for the current state of affairs.

"Plaintiffs, in August 2004, could reasonably be considered to have been at least partially responsible for the wide-spread dispersion of their recordings over peer-to-peer networks like Napster and Kazaa...Plaintiffs knew, or should have known, exactly where their sound recordings would end up."

Arguing fair use, the Tenembaum legal team claims that Joel should benefit from a period that extends beyond the recommendations of the original judge in the case. The judge had stated that a court could envision a fair use defense until the advent of iTunes (2003). However, Tenenbaum's defense states that because of DRM, their time line should extend to 2007 (when DRM began to decline.)

The judge in this case seemed sympathetic to Joel, but it remains to be seen whether or not the penalty will remain the same.

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