[Tenenbaum] proposes a fair use defense so broad that it
would swallow the copyright protections that Congress has created.
Indeed, the Court can discern almost no limiting principle: His
rule would shield from liability any person who downloaded
copyrighted songs for his or her own private enjoyment....
Likewise, his demand for a jury determination on this issue
appears all but standardless; "fair use' would, in effect, be any
use whatsoever that a jury deemed fair. In the end, fair use is
not a referendum on fairness in the abstract, as the Defendant
would have it, but an effort to measure the purpose and effects of
his particular use against the incentives for artistic and
literary creation that Congress established in the Copyright Act.



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