http://arstechnica.com/tech-policy/news/2009/05/harvard-prof-tells-judge-that-p2p-filesharing-is-fair-use.ars
Wholesale copying of music on P2P networks is fair use. Statutory damages can't be applied to P2P users. File-swapping results in no provable harm to rightsholders.
These are just some of the assertions that Harvard Law professor Charles Nesson made last week in his defense of accused file-swapper Joel Tenenbaum. In court filings, Nesson spelled out his defense strategy, which doesn't appear to involve claims that his client "didn't do it." Instead, Nesson argues that it doesn't matter if Tenenbaum copied music; such noncommercial uses are presumptively "fair" and anyone seeking to squeeze file-swappers for statutory damages is entitled to precisely zero dollars.
The strategy certainly doesn't lack for boldness. In making the case that statutory damages only apply to commercial infringers, Nesson says that his reading of the law is "constitutionally compelled." His most interesting argument is that the law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent.
"It would be a bizarre statute indeed that offered two completely unrelated remedies," he writes, "one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month."
[...]
It's all fair use
In any event, all of this statutory damages talk doesn't matter, because Nesson claims that Tenenbaum's use of the songs at issue here was "fair use" and thus not an infringement at all. It's a gutsy move to claim that wholesale downloads of complete copyrighted works for no purpose higher than mere enjoyment of music somehow satisfies the famous "four factor test" for fair use claims, but Nesson believes he can win over a jury.
[...]
But last week's court filings indicate that this is precisely how Nesson intends to argue the case. As for the "four factors," he plans to address them... but also to go far beyond them. Nesson will introduce "other factors" that the jury should consider in the case, which include "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."
Should Nesson win, he will essentially legalize the sharing of all digital goods, copyrighted or not, by noncommercial users. Given that he wants to make the case about big principles like fair use and the applicability of statutory damages—and not about whether Joel Tenenbaum did what he is accused of doing—the music industry is likely to fight even harder to ensure that Nesson's preferred outcome is not realized. The fireworks are scheduled to begin this summer in Massachusetts federal court.
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These are just some of the assertions that Harvard Law professor Charles Nesson made last week in his defense of accused file-swapper Joel Tenenbaum. In court filings, Nesson spelled out his defense strategy, which doesn't appear to involve claims that his client "didn't do it." Instead, Nesson argues that it doesn't matter if Tenenbaum copied music; such noncommercial uses are presumptively "fair" and anyone seeking to squeeze file-swappers for statutory damages is entitled to precisely zero dollars.
The strategy certainly doesn't lack for boldness. In making the case that statutory damages only apply to commercial infringers, Nesson says that his reading of the law is "constitutionally compelled." His most interesting argument is that the law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent.
"It would be a bizarre statute indeed that offered two completely unrelated remedies," he writes, "one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month."
[...]
It's all fair use
In any event, all of this statutory damages talk doesn't matter, because Nesson claims that Tenenbaum's use of the songs at issue here was "fair use" and thus not an infringement at all. It's a gutsy move to claim that wholesale downloads of complete copyrighted works for no purpose higher than mere enjoyment of music somehow satisfies the famous "four factor test" for fair use claims, but Nesson believes he can win over a jury.
[...]
But last week's court filings indicate that this is precisely how Nesson intends to argue the case. As for the "four factors," he plans to address them... but also to go far beyond them. Nesson will introduce "other factors" that the jury should consider in the case, which include "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."
Should Nesson win, he will essentially legalize the sharing of all digital goods, copyrighted or not, by noncommercial users. Given that he wants to make the case about big principles like fair use and the applicability of statutory damages—and not about whether Joel Tenenbaum did what he is accused of doing—the music industry is likely to fight even harder to ensure that Nesson's preferred outcome is not realized. The fireworks are scheduled to begin this summer in Massachusetts federal court.
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