Federal judge Nancy Gertner today officially brought down the tent on the Joel Tenenbaum P2P Big Top World 'O Fun, all but admitting that she would have given Tenenbaum's arguments about "fair use" a truly sympathetic hearing were it not for the shoddy behavior of his legal team. What could have turned into a watershed case instead became another statutory crucifixion, with Gertner finally entering the jury's $675,000 verdict against the young file-swapper whose defense crashed down with an in-court admission that he had been lying all along.

Gertner signed off the jury's damage amounts, which means that Sony BMG is entitled to $112,500, Warner Bros. gets $225,000, Arista Records gets $45,000, and Universal picks up $292,500.

The record labels wanted more, though; specifically, they asked for an injunction against Tenenbaum that would stop him from "promot[ing] using the Internet or any online media distribution system to infringe copyrights."

According to Gertner, "the word 'promote' is far too vague to withstand scrutiny under the First Amendment. Although plaintiffs 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 Court has neither the desire nor the authority to serve as the censor of defendant's public remarks regarding online file-sharing."

So it ends—but it didn't have to be this way.

What might have been

In a separate 35-page memo, Gertner lays out a lengthy analysis of Tenenbaum's claim that all noncommercial P2P file-sharing was simply fair use under US copyright law. In it, her displeasure with the defense becomes clear. Led by Harvard Law professor Charles Nesson, Team Tenenbaum told the court in late 2008 that it wanted trial as soon as possible and would file no amendments to its defense. A few weeks before trial, it dropped a bombshell; Nesson now wanted to claim that all file-sharing was legal.

Talk about overreach—there was no way such a defense would fly with even a sympathetic federal judge, as it would utterly eviscerate copyright. Or, as Gertner put it today, it would "swallow the copyright protections that Congress created, defying both statute and precedent."

But what's striking about the judge's memo is her frank admission that she might have gone along with a more limited form of this defense.

Charles Nesson

"As it made clear previously, the Court 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."

Read that again: Gertner was ready to consider the idea that even years of unrepentant P2P use might have been allowable so long as they were in the dark days of Napster and music industry's own ridiculous attempts to launch music stores online, PressPlay and Musicnet. Once iTunes and then Amazon made online sales cheap and easy, though, Gertner was not about to authorize widespread file-sharing.

Also remember that Gertner throughout has been quite a public critic of the music industry's lawsuit campaign. She continues that criticism in the memo, saying, "The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the Internet, did everything in its power to permit Tenenbaum to make his best case for fair use."

That was the backdrop, but when Nesson and his team stepped up to litigate the issue of fair use, what did they offer to Gertner? "A truly chaotic defense," she calls it, along with legal papers that "can only be described as perfunctory."

It was also one that reached much too far. "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." By striking so broadly at the idea of copyright, Tenenbaum took the matter out of Gertner's hands. "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court," she concluded.

In addition, she singled out Nesson for criticism in a footnote to the memo. "Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings to the Web." Examples of Nesson's bad behavior in the case "are legion."

And so we're left wondering what might have been. Tenenbaum can still contest the damage award, arguing that it was unconstitutionally excessive (papers on that claim are due in January), but "reducing a ridiculous damage award" is far less important than shoring up robust fair use rights.

The circus that the case has been was entertaining enough; for journalists, in fact, it was an unlooked-for boon. But there are limits to entertainment's ability to effect change. Now that the circus lights are down and the big top is packed away, the world returns to the way it was.