Will argue a “full technological substitute” to P2P didn’t exist until 2007 when DRM was removed from digital music offerings, well after the time frame the judge in the case accepted illegal downloading as an exemption for “fair use.”
Harvard Law Professor Charles Nesson has decided to appeal the verdict against accused file-sharer Joel Tenenbaum with the First Circuit Court of Appeals.
Tenenbaum was found guilty of copyright infringement for illegally sharing 30 songs this past August and was fined $22,500 p/song for a total of $675,000.
Nesson has long argued in the case that downloading music without the copyright holder’s permission qualifies for “fair use” exemption from copyright laws, and if an individual file-sharer is not proven to have caused actual losses that they can’t be held liable for damages.
He has also said the music industry is partially to blame for illegal file-sharing, 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.
Therein lies the rub, for the judge in the case, Judge Nancy Gertner in the District of Massachusetts, allowed for a fair us” exemption for illegal file-sharing only from 1999 until the music industry began offering legal alternatives around 2001 with the advent of Apple’s iTunes.
Nesson, on the other hand, argues that it wasn’t until 2007 when DRM was removed from digital music, when fully transferable, unencrypted music was available online, that was a full technological substitute that would rule out a fair use exemption.
“The fair use argument then, to a Court, becomes, a policy argument, in effect, of saying that the law shouldn’t put its weight behind an inferior product,” he says. “When you have an alternative that is ubiquitous, that the industry has been responsible for making so [because CD's were not encrypted], if the law enforces copyright based on the encrypted product, which is inferior to the available product [which is unencrypted], then it’s acting in a way which is counter to innovation.”
He has said the real problem in all of this is the tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world.
“I got my ass kicked pretty well in this trial.” he says. “What Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.”
Many of us have and still do, which is what makes the RIAA’s campaign against illegal file-sharing so important to follow. For all the years and millions wasted on fighting P2P it has little to show for it other than having managed to alienate music fans and artists alike.
The RIAA announced last December that it would quit suing individual file-sharers and wants ISPs to adopt a three-strikes policy instead, but despite that assertion continues to do so.
Stay tuned.
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