The trial hasn't even started yet, but the record labels appear to have had their fill of the crazy antics of Team Tenenbaum. As the second US trial against a file-sharing defendant approaches (it starts July 27), the labels have asked the judge for limited summary judgment—they want a ruling that Joel Tenenbaum's alleged P2P use is not "fair use."

Tenenbaum doesn't come across as a particularly sympathetic defendant in the motion, especially since he appeared to admit to doing the deed during his initial deposition. "The list of P2P networks that Defendant has used over the years reads like an entry from a P2P encyclopedia: Napster, AudioGalaxy, iMesh, Morpheus, KaZaA, and LimeWire, among others," say the labels. Even though Tenenbaum was notified in 2005 that the labels intended to file suit against him, his "Gateway computer contains evidence that Defendant was using the LimeWire file sharing program in February 2007, and possibly as late as May 2008, long after this case was filed, to distribute thousands of music files to other LimeWire users."

Gutsy (or really stupid)—but if true, the charge meshes perfectly with the behavior of Tenenbaum's own legal team. One member of that team uploaded some of the songs at issue in the case to a file-hosting service, and Harvard Law's Charles Nesson (who leads the Tenenbaum defense team) posted the site password on his public blog.

Arguing that Tenenbaum "didn't do it" looks like a losing strategy. Instead, Nesson & Co. have decided to claim that Tenenbaum's file-sharing was simply a permitted "fair use" of copyrighted material under US copyright law.

That law contains four factors used to make such a determination, but since all four go quite obviously against Tenenbaum, he has proposed using a few more factors of his own devising. (The law only says that "the factors to be considered shall include..." the four listed, implicitly allowing additional factors in some cases.)

The labels have nothing but scorn for these extra factors. "In his recent deposition on fair use issues, Defendant explained that his fair use defense also relies on factors such as how much music he later purchased, whether he discussed his downloads with friends, whether he downloaded a whole album or just one song off of an album, whether he profited from his distribution, his state of mind (i.e., did he know whether it was illegal), the extent to which he 'identified' with a song, whether a song 'expresses' who he is, and whether P2P use benefits 'obscure' songs."

The labels can also thank Nesson's "radical transparency" for one of their own arguments—one in which they point out that not even Nesson's own group of free culture warriors agree with the fair use claim being made here.

In the labels' view, Tenenbaum's action poses no real question about fair use. "Defendant downloaded complete copies of Plaintiffs' sound recordings for free, and then distributed them to others without alteration. Whether he 'identifies' with a song or not, Defendant added nothing creatively. He took copyrighted music without paying for it, kept it on his computer for his own benefit, and then distributed it to others without doing anything that could remotely be considered transformative. Defendant’s purpose was to avoid the cost of buying the music—which he concedes was widely available to him from legitimate sources, including both physical retailers and online sources..."

"No conceivable set of facts exists that would allow Defendant’s unlawful copying and distribution to be considered fair use, and every court to rule on the issue on facts nearly identical to those presented here has rejected any claim of fair use by infringers like Defendant."

The labels argue that there is no disputed fact to decide on this issue (and therefore no jury is required), so they want Judge Nancy Gertner to rule that fair use does not apply in the case. If the labels win on this matter, it's easy to envision the trial going very, very badly for Team Tenenbaum.

Tenenbaum has until Friday to respond.