Harvard Prof To Argue P2P Is Fair Use

But could just be a road to a better argument

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One of the biggest legal fights between the music industry and a file sharer is slated for this summer, and the outcome will determine more than just whether defense counsel is a genius or out of his flippin’ mind.

Harvard Law professor Charles Nesson made headlines by taking the case of peer-to-peer (P2P) file-sharer Joel Tenenbaum, in a fight for his financial life against habitual copyright law abuser the Recording Industry Association of America (RIAA—now with five former attorneys heading up your Department of Justice).

Charles Nesson
Charles Nesson

Most of the attention Nesson has gotten has revolved around unorthodox maneuvers. Nesson once requested the trial be broadcast live on the Internet, a request subsequently denied. The new plan is to argue file-sharing counts as fair use, so long as it’s not for commercial use.

The RIAA has to get in line to argue against that interpretation, even behind legal minds the recording industry would rather not speak up most of the time: minds in the heads of fair use experts like Lawrence Lessig and Terry Fisher. Though determining what is and isn’t fair use can be complicated, the legal community relies primarily on the “four factor test,” which is as follows:


  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market.

In the case of music file-sharing via p2p, here are some possible answers:

  1. the purpose and character of your use: to freely copy and distribute recorded music to scores of others who will do the same for nonprofit/noncommercial purposes
  2. the nature of the copyrighted work: copyrighted commercial recorded music
  3. the amount and substantiality of the portion taken: all of it
  4. the effect of the use upon the potential market: unknown, or potentially zero

It’s that last answer Ars Technica’s Nate Anderson says Nesson will base his entire argument on. In order to win Nesson will have to convince a jury that sharing music via P2P has no real or measurable effect on the recording industry’s bottom line, and thus no damages can be claimed.

In addition, Nesson will challenge the notion of statutory damages in the case of file-sharing, hinting that granting statutory damages are rather arbitrary and senseless when there are no actual damages. He compares statutory awards to granting plaintiffs “the right to drive a flock of sheep across federal property on the third day of each month.”

The argument could be genius, but only if Nesson pulls it off. It gives him the opportunity to make the case that the RIAA can’t prove actual damages from file-sharing, and if they can’t prove actual damages, then exorbitant fines (ranging from $750 to $150,000 per infringement) cannot be justified.

Outside of the courtroom the RIAA has joined its blood-brother the MPAA in trumping up connections between piracy and human trafficking and even terrorism, in inflating their own lost sales figures, in keeping a tight grip on lawmakers worldwide, and in going after small-fry file sharers with iron fists and ridiculous reimbursement demands. Meanwhile, competing research shows pirates significantly more likely to buy music than non-pirating counterparts.

Not that any of that matters. Both sides are guilty of abuse; one side is powerful, wealthy and litigious, and the other is made up of scattered masses. Maybe it should just be called a truce? At the very least, how about some reform legislation?

While it may be hard for Nesson to make a case for fair use, it may be he only has to convince a jury file-sharing does no actual damage. “Should Nesson win,” writes Anderson, “he will essentially legalize the sharing of all digital goods, copyrighted or not, by noncommercial users.”

Harvard Prof To Argue P2P Is Fair Use
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