 Fair use is an affirmative defense which would have to have been raised prior to the first trial, or at least reasonably early enough to allow for discovery in the retrial, whereas the retrial date was only days away.The retrial was held on June 15, 2009 under the updated case name "Capitol Records v. Thomas-Rasset".During oral arguments, the parties disagreed on whether Thomas-Rasset received notice of investigation, and whether she got the hard drive replaced to destroy evidence or because it was damaged in an unrelated incident.