Harvard Prof to RIAA: “P2P is Fair Use”

Lawyer Charles Nesson plans to argue that downloading music without permission of copyright holder qualifies for “fair use” exemption from copyright laws, and if an individual file-sharer is not proven to have caused actual losses than they can’t be held liable for damages.

Harvard Law professor Charles Nesson is preparing a very interesting defense for Joel Tenenbaum who is accused of illegally downloading 7 songs back in 2004. He’s not going to argue that he didn’t do it. Nesson is now contending that sharing files with your “friends” over the Internet isn’t actually a crime, and is covered under well-established “Fair Use” laws. Furthermore, according to Nesson, the aggrieved party in a file-copying case isn’t entitled to any damages anyway.

“Fairness borders copyright infringement,” reads Nesson’s court brief. “Proving that the defendant infringed entails proving that his copying was not fair. Whether the unfairness of a noncommercial defendant’s use need be proved as part of the copyright holder’s affirmative case or whether the fairness of the defendant’s alleged copying must be advanced by the defendant as an affirmative defense, the issue of the fairness of the defendant’s use is integral to the decision the jury must make as

to whether the defendant’s actions were infringements.”

Judges normally use four factors in resolving fair use disputes, which are discussed in detail below. It’s important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

The four factors judges consider under section 107 of the Copyright Act are:

1. the purpose and character of the use, including whether such use is of a

   commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted

   work.

“Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors,” continues the brief. “Just as they are articulated in the statute, with the jury to decide their meaning as they apply to the facts of his particular case. Defendant Tenenbaum expects and plans as well to offer the jury evidence relating other factors that bear on the jury’s assessment of whether the defendant’s actions in their context were unfair.”

Nesson says that also intends to argue that the music industry is partially to blame for illegal file-sharing. He says that it should have known to some degree that by publishing copyrighted material that it would be “ripped and shared on P2P networks,” and that by not offering alternatives to P2P, as was certainly the case back in 2004 when the alleged crime is said to have occurred, the music industry created an environment ripe for illegal file-sharing.

In a separate filing in response to the US Department of Justice in relation to the case, Nesson argued that statutory copyright damages, which can run to thousands of dollars per song downloaded, should not apply in non-commercial cases.

“Commercial copying without permission is the clear target of the Copyright Act -

- not the noncommercial user,” it reads.

Moreover, Tenenbaum’s “actual use of the copyrighted works” is what’s most important, and never did he use them for commercial gain and thereby inflict any damages to the music industry.

But most significantly, Nesson says the govt ignores the structure of the statutory damage provision of the Copyright Act itself.

Section 504(a) of the statute provides that:

Except as otherwise provided by this title, an infringer of copyright is liable for either—

(1) the copyright owner’s actual damages and any additional profits of the infringer …; or

(2) statutory damages ….

Being that the operative word is “or,” the RIAA must elect to receive either actual damages or statutory damages. A copyright holder is entitled receive either actual damages or statutory damages precisely because those two remedies are presumed to be equivalent to one another.

“It would be a bizarre statute indeed that offered two completely unrelated remedies within the same section: we imagine, for example, that the Court would be baffled by a statute that granted a plaintiff the choice between two remedies, one of 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,” continues the brief. “By including the remedies side by side in the Copyright Act, there is a strong textual suggestion that they are to a certain extent comparable to one another; that in some way they provide the same remedy for plaintiffs. Indeed, the precise reason that Congress authorized statutory damages in cases of copyright infringement was that the damages associated with infringement are generally extremely difficult to prove in court: commercial infringers rarely keep records of their business activities, and it may therefore be difficult for copyright holders to prove the profits of those infringers.”

Since individual individual noncommercial copying results in no provable actual harm to the copyright holder the damages should also be zero. The $150,000 the RIAA is seeking per infringement is thereby nonsensical and inappropriate for use under 504(1) as described above.

Nesson sums up by noting that “a noncommercial use of copyrighted material is presumptively fair and therefore not an infringement.”

“Allowing lawsuits threatening huge statutory damages against noncommercial users utterly destroys that presumption, which means the statute should not be interpreted to permit such result.”

He has a good point here, but it may mean that all copyrighted works can be freely shared so long as there’s no commercial gain, and I’m not sure that’s a conclusion the courts are prepared to make.

Either way, Nesson is as compelling as ever. It’s about time the RIAA met its match.

Stay tuned.

jared@zeropaid.com

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