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Harvard Law's Nesson Says P2P Is "Fair Use"
eldavojohn writes "Ars has been covering the story of Charlie Nesson (alias 'Billion Dollar Charlie') of Harvard Law who's tangoing with the RIAA in court. His approach has been revealed in e-mails on his blog and has confused everyone from Lawrence Lessig to the EFF. His argument is simple: file-sharing is legal as it is protected by fair use. I dare say that even the most avid file-sharers among us would be a bit skeptical of this line of reasoning."
As much as I'd like to agree with him, I think someone's reaching just a little too far...
...going to Harvard is not a guarantee of sanity. Just looking at this guy's blog seems to confirm that suspicion. Of course, I wish him the best of luck! If he somehow manages to successfully argue his case, I will be very happy for him. Shocked, but happy.
Javascript + Nintendo DSi = DSiCade
No surprise that Lessig is unhappy with the approach. While lauded on Slashdot, Lessig only wants to restore copyright to the original length instead of abolishing it completely so that our music and film downloading habits are not threatened. I picked up Lessig's latest book Remix because I thought he was going to sock it to The Man, only to be aghast that he really just wants to replace a fairly monolithic Man with a bunch of smaller Men, and stifle the enormous benefit of filesharing.
A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracyâ¦
might as well say p2p is fair use, the riaa/miaa think that someone bringing over a dvd/cd to watch with you is stealing...right?
I would like to say that Chebacca is a Wookie. Wookie are not from Endor, they're from Kashyyyk.
This does not make sense. What are Wookies doing on Endor? Why would an eight foot tall Wookie want to live with two foot tall Ewoks?
What does this have to do with digital piracy? Nothing. If this does not make sense then you must aquit.
Thank you ladies and gentlemen of the jury.
The plaintiffs in cases like these usually involves throwing as many claims as possible into the fan, hoping that at least a few stick to the defendant.
This is also a favorite tactic of prosecutors in criminal cases these days: pull someone over for speeding, and charge them with possession, molesting a teenager, carrying a concealed weapon, and reckless driving. Shock the defendant into pleading guilty to the reckless driving charge in exchange for dropping the rest, when in reality he deserved no more than a $200 ticket for speeding.
So in this case, why not claim "fair use"? Why stop at just one claim? Why not raise a thousand doubts about the legitimacy of the claims? It's certainly no worse (nor less truthful) than the RIAA claiming a million dollars in damages for putting 10 files up on an FTP site.
John
P2P file sharing is fair use.
Sharing copyrighted material is not fair use, unless the copyrighted material can be shared under the fair use clause (eg: a documentary with a clip of a movie/song).
"I dare say that even the most avid file-sharers among us would be a bit skeptical of this line of reasoning."
Why is that? That is the situation in Canada (at least until some US corporate alliance successfully bullies our MPs into changing the law).
Honestly, this just sounds like he's torturing the concept of "fair use" until it suits his purposes. If I look cross-eyed at the tax code for long enough, I wonder if I'll find a way to have the government give me millions of dollars. Or maybe I'll just see a 3D sailboat.
To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible.
Sounds like this new exchange won't do anything to alter his opinion...
I am TheRaven on Soylent News
It seems to me that this strategy is more likely to provide fuel to the fire for overturning or severely diminishing Fair Use. If he can prove that electronic distribution of copyrighted works is covered under Fair Use, then it makes a strong case that Fair Use has overstepped its intended bounds. Wendy Seltzer says as much in the referenced Ars article, though I came to this conclusion just from reading the summary before deciding to make sure the summary wasn't just misleading.
Oh, was that my outside voice?
Although I have raised fair use as an affirmative defense in several cases, I haven't litigated any fair use defense scenarios yet, so I'm not going to be able to comment in depth, and I'm not going to get into any dialogue about it. Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA. When I have an argument to make, my adversaries can read about it in my court papers; and then we can chat about it on Slashdot until the cows come home.
But I will say this much for the benefit of my friends here:
1. Prof. Nesson and all of his assembled, learned advisors and cyberlaw scholars do the subject an injustice by overly simplifying the term "file sharing".
2. There are many different factual scenarios within the penumbra of "file sharing".
3. Some of those factual scenarios would clearly be entitled to a "fair use" defense; some clearly would not; some fall in a gray area. Contrary to what the 'content cartel' lackies would have you believe, and contrary to what Prof. Nesson's friends seem to think, we are at the beginning -- not the end -- of mapping out the boundaries of "fair use" in this area.
I will also interject, from a procedural standpoint, that I find it unusual and inexplicable that a conversation between an attorney and prospective expert witnesses would be posted on the internet; one would have to wonder whose side the attorney is on.
Ray Beckerman +5 Insightful
Your an idiot!!!!!!!!! did you even read this article our did you just want to post for the fun of it you troll!!!!
Downloading movies/music is actually legal in some countries (like Austria). It is protected by the "Fair Use". Uploading/Sharing is obviously prohibited. This makes using protocols that do uploading while downloading (like Bittorrent) illegal (for copyrighted content).
There are more aspects in the (EU) E-Commerce law, e.g. linking to obviously illegally hosted content, with exceptions for general purpose search engines, that you have to react in time if you (unknowingly) host links to infringing content, etc.
NB: The message above might reflect my opinion right now, but not necessarily tomorrow or next year.
Why not? I do not see a problem with his reasoning. Is it not what a person DOES with those files/data that decides if they are breaking the law?
If a news paper can steal a sentence from a book, audio tape, or even another newspaper to make commentary on it, then why can't people trade data so that they can review and additionally make commentary on it?
Just because a million people happen to be reviewing said files should not mean anything illegal is going on... heh heh. Additionally just because it is P2P does not mean its illegal. Many opensource programs and applications are traded on P2P, as well as other public domain works.
And to take this line one step farther. What happens if you like to copy all of your cd's to a hard drive to mount as ISO's for performance, storage, or backup reasons? I keep all of my cd's closed up in a box in storage. If my drive got raided I would look like a pirate extraordinaire even though everything is legit!
The whole argument here is basically that we need to take everyone's steak knives away because some people use the steak knife to break the law! P2P is just a utility! I can be used for good or evil. Creating rules to cripple it just because some Big Exec feels like he is losing cash is stupid!
(didn't read tfa, but here's why I think we should be sharing information:)
Because we can!
Nevermind if it's fair use or illegal. We can enrich the lives of all mankind with a press of a button. Welcome to the 21:st century.
Some of my favourite people are from th US; Vonnegut, Chomsky, Bill Hicks.
Based on the traditional four point analysis of fair use, the typical "file-sharing" /.ers are used to doesn't seem to fair too well:
1. The purpose and character - file-sharing is hardly transformative or derivative. You could argue transformation much better with things like mashups, etc. But torrents of movies and music?
2. Nature of the copied work. If it's factual, the infringer is on better ground - e.g., if you're a chemist who photocopies a journal article so that you can take the copy into the lab with you, rather than the entire journal. There are of course fair uses of creative works, too. This would of course depend on the individual work, not "file-sharing" as a whole, though probably the vast majority of file-sharing is in creative works, rather than scientific/factual.
3. Amount/Substantiality - well, most people I know torrent the whole film, not just 5 minutes of it, so...
4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
sounds like this guy has been to the chewbacca school of law!
If you own a copy of the work, and you use the p2p to get an alternate format of the same work, i would say it MAY be fair use.
If you use p2p to sample the work before buying it or not, it also MAY be fair use.
It depends ALOT of your local laws... the state of mind of a kitty in the other side of the world and the phase of the moon.
And... IANAL
If not Fair Use, how about individual Civil Disobedience? Consider filesharing as protected, not for profit, speech in protest of the decades of record companies ripping off consumers as well as artists through their longtime payola, high bar of entry for everything from recording studios to pressing plants, monopoly of the sources of production, distribution, promotion, and sales of music. And don't forget the bundling of 1 worthwhile song and 11 crap tracks in a highly overpriced, take-it-or-leave-it, CD, or the outrageous statutory damages that their lobbying and paying off of the politicians have jammed into Copyright Law. Oh, and did I mention their outright theft of the Public Domain. Songs copyrighted today will not enter the PD during the remainder of your life time. Not exactly what our Founding Fathers had in mind, having lived through that situation of eternal copyrights in Europe of the time already.
Yeah, I'd call that something to protest by any means possible.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA.
Which makes me wonder if Charlie Nesson might be leading the opposition down the garden path, attempting to bury any real leaks out of his student brain trust under a barrage of unrelated sideshow acts?
(I'm reminded of an alleged CIA tactic called "the second cover": You wrap the secret in TWO cover stories. The first is plausible, even if potentially easily detected as bogus. The second is the kind of stuff you read about in tabloids and certain late-night talk shows (some of which may be the fossils of old second cover stories). When somebody penetrates the first cover they find the second cover. At that point any of several things may happen, including: A) They believe the second cover. Hilarity ensues. B) They "recoil" back to the first cover. C) They become suspicious of any other reports on what is actually under the covers.)
(Then again, maybe Charlie's mind has finally gone. B-( )
As with NYCL's adversaries, we'll know what the Billion Dollar Charlie team's arguments REALLY are when we read them in the court papers. B-)
Meanwhile, if this is what is going on, I hope my speculation (if it has any effect) adds to the confusion rather than blowing the cover.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
FYI I would like to point to my fellow slashdotters that in many countries unlike the USA, it is explicitly spelled out as legal the downloading of copyrighted music or movies for _private_ _non-comercial_ use. In the Netherlands it is like this, and AFAIK also in Spain.
This is just to point out that it is possible to have sane laws, and that the world just doesn't come to end if you do.
4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.
Or in favor... because for sure, there are no scientific studies regarding the issue (at least of my knowledge).
Sometimes a music becomes a success just because it was wildly distributed on the p2p.
Also of notice... "file-sharing" isn't only p2p... you can have file-sharing on almost all current OS...
Even windows has that capability since windows for workgroups... ;)
Let me give you an example. I have a TiVo-like recording device attached to my computer. It records TV broadcasts for timeshifting and archival. However, it records them in a non-compressed format. A typical TV broadcast can take 2 gigs of data. So, what I often do is also P2P the same show. I have rights to watch this show and I have a recording of the show. The only thing the P2P network lets me do is save me the time of compressing and manually chopping the same show into parts for archival. Shifting from MPEG2 at 2 gigs to MPEG4 at 600 megs is fair use in the same way that ripping an mp3 from a CD you have rights to listen to is fair use. This is what the P2P network lets me do.
This would set an ugly precedent...electroncally shared media would be 'Fair Use'. While the media industry is in major need of reform, I don't feel we should be able to have anything we want for free. It does cost someone money to produce this stuff, after all.
Ah but P2P does have fair uses, not everything shared is copyright infringement.
Falcon
Should there be a Law?
I will also interject, from a procedural standpoint, that I find it unusual and inexplicable that a conversation between an attorney and prospective expert witnesses would be posted on the internet; one would have to wonder whose side the attorney is on.
The side of openness of information?
Numbers can't be copyrighted.
An mp3 is a number.
Now gimme a fat sack o' cash and I'll shut up.
If you can read this, I forgot to post anonymously.
2. There are many different factual scenarios within the penumbra of "file sharing".
I guess so, but wouldn't there be a scenario about which you could say, "if this is fair use, then most file sharing is fair use."? Something like: setting up your computer to be the server specifically with the intent of allowing others to download.
I don't really know. I tried reading something from the guy's weblog, and I couldn't understand what he was talking about. Plus, I don't think I can trust someone who looks like Senator Palpatine.
The only sense I can make out of it is, might he be trying for jury nullification? It seems like there is an argument to be made, that copyright law wasn't intended to address private non-commercial sharing. However, (IANAL) it doesn't seem like current fair use law makes a blanket exception for sharing non-commercial copies. I've always thought of the argument more as a reason to think about rewriting the laws to try to address copyright concerns in a sensible way, given the realities of the Internet age.
I could see a jury being persuaded to ignore the law, though. Given a random set of 12 people, how many of them do you think have engaged in file sharing themselves?
Cutting the cost of seeing a movie from a few bucks (or a couple days with something like Netflix) to download it would, I suspect, become the death knell for most theaters.
For some downloads may be a death knell but not to all. I love going to the theatre. Because even a big screen TV doesn't match a theatre screen and because I get away for a little bit. And not everyone could afford one of those TVs. Even a 42" TV can cost more than a $1000, I know because I've been looking at them.
Falcon
Should there be a Law?
Charles-
You're so right. :-)
Here are links to some related things I've written, to maybe give you some more inspiration. :-)
This posting asks, if copyrights are so valuable, why is there not an annual tax on them for the burden they impose on society?
http://journalism.berkeley.edu/projects/biplog/archive/000431.html
This long essay talks about the deeper social issue is the transition to a "post-scarcity" society. :-)
"Post-Scarcity Princeton"
http://www.pdfernhout.net/post-scarcity-princeton.html
(Sorry, I did not go to Harvard, but I do mention it there in passing.
This is a satire about what the practice of law would be like if the law was set up the way most lawyers advise the rest of the world to live: :-)
"Microslaw"
http://www.pdfernhout.net/microslaw.html
Albert Einstein said: "If at first, the idea is not absurd, then there is no hope for it".
We need to move beyond a lottery model for supporting creativity.
Keep trying. History will ultimately be on your side.
--Paul Fernhout
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.
If I were on that jury, most of his argument wouldn't sway me. But there's just one thing: the penalty. The penalty for copyright infringement is $150000?! If so, then copyright infringement must be a very serious crime, right up there with rape and murder. But p2p copying, which I would have assumed is infringement (because it seems like infringement in every way I can think of), obviously isn't anywhere nearly as serious as other crimes for which the penalty is $150k. Ergo, p2p copying must not be copyright infringement. If it's not infringement, then it must be Fair Use.
It's sort of the opposite of "If you can't do the time, don't do the crime." If the penalty doesn't fit the act, then the act must not have been a crime. Or maybe I'd borrow from a certain princess: The more you tighten your grip and increase the penalty, the fewer situations the penalty must apply. Somewhere behind the law, somewhere in its dark origins, is a motivation: fairness. If you defy the motivation for the law, then there is no law. When they set the penalty for infringement to $150k, they created new criteria for Fair Use.
I know there was a case here in Canada where the judge said the P2P was considered fair dealings.
Placing something in a public place is not distribution as each downloader is making a private copy. Private copies are fair dealings. The judge compared P2P to a Library that had copy machines. The book is in a public place, they provide the machine to make the copy but each person copying something from a book is making a private copy and that's ok under Canadian law.
This is why the Canadian version of RIAA has been pushing for new copyright law.
Free as in "the Truth shall set you..."
Everyday, the judicial system is getting more and more like Phoenix Wright!
There are scientific studies. There are some older studies that argues that there is a link between filesharing and decreased profits however the newer ones argue that there are no significant correlation. Or at least that is what the expert witness claimed in the pirate bay trial
IANAL, but the issue in whether or not p2p is fair use, is not whether or not you recieved the entire file(s), but where you got the pieces from.
If you splice together 50 promotional videos (which are covered by fair use) for a movie which you downloaded from 50 different sites and manage to reconstruct the original movie from it - when did the copyright violation occur? During recombination of the pieces? In that case VirtualDub (et al) will have a huge problem on their hands.
In a p2p network, when you get right down to it, you're getting 1000s of promo videos (fair use?) from 100s of sources (most of which may not even have the complete work), so the act of transfering any single piece from any single peer may indeed be covered by fair use. But if you got the peices legally, then surely re-combining them is not illegal, is it?
It is, of course, a ridiculous argument to make as it's based on a rather binary interpretation of the word of the law, and ignores the clear spirit of the law. Sometimes it seems like even the obvious is too difficult for politicians to codify into law...
Man, just talking about p2p music downloads and lawyers pop up! :-)...[I was smiling when I said that, good sir]
Thanks[again] for the relevant links in a timely fashion.
IMO, this is all just 'horse trading' in a way. Sooner or later, the extremes will negotiate to a mutually acceptable middle area....I hope.
Right now, the balance is tipped in favor of the labels/RIAA. Nesson is rabble rousing to try and tip it back towards the customers, or at least an even balance.
It's kind of like listening to Richard M. Stallman. Most people fall in the middle.
We are just watching to extremes squaring off. Maybe some good can come out of it. *crosses fingers*
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
That's why one can say that people wouldn't buy the media if it weren't available as an unauthorized copy.
You don't even need to use that ridiculous $150k per mp3 the RIAA insists upon, just add the retail price of every work in a typical teen's computer and you'll see there's no way he or she could have bought it.
At $0.99 for a 3MB file that's typical of mp3 songs, every 100GB of media has a $30000 worth, if the retail price is used. How much do teens get as allowance? $100/week or so? Is it realistic to assume a kid would spend six years of his allowance on music, if he couldn't download it as P2P?
"Fair use" or not, the fact is that P2P harms no one. It doesn't take anything away from the legitimate owner, and there's no lost profit either.
Man, just talking about p2p music downloads and lawyers pop up! :-)...[I was smiling when I said that, good sir]
Thanks[again] for the relevant links in a timely fashion.
IMO, this is all just 'horse trading' in a way. Sooner or later, the extremes will negotiate to a mutually acceptable middle area....I hope.
Right now, the balance is tipped in favor of the labels/RIAA. Nesson is rabble rousing to try and tip it back towards the customers, or at least an even balance.
It's kind of like listening to Richard M. Stallman. Most people fall in the middle.
We are just watching to extremes squaring off. Maybe some good can come out of it. *crosses fingers*
Your thoughts are probably very comforting, and for mental hygiene purposes represent a perfect approach.
Unfortunately, to the imagination-challenged, faith-deprived, reality-based types like myself... it sounds like wishful thinking.
But from your mouth to God's ear.
Ray Beckerman +5 Insightful
I could see a jury being persuaded to ignore the law, though. Given a random set of 12 people, how many of them do you think have engaged in file sharing themselves?
Jury nullification is unlikely to work. Prosecutors and many judges dismiss potential jurors who believe in jury nullification. Judges even instruct jurors that they are required to decide the facts, was a law broken, and not to judge the law. In 1895 the US Supreme Court case Sparf v. United States, 156 U.S. 51, 102 the justices rejected jury nullification.
Falcon
Should there be a Law?
Based on the traditional four point analysis of fair use, the typical "file-sharing" /.ers are used to doesn't seem to fair too well:
Nesson's assertion is that the four points described in Title 17 are descriptive, not prescriptive, and that Fair Use is a broader and deeper concept arising from common law.
From a more practical perspective, his belief is that if he can convince a judge to let him put this argument in front of a jury then he can convince them that Fair Use applies. My understanding was that points of law are decided by judges, not juries, but I'm sure he has an argument as to why the jury should get to decide this one.
Or maybe he's just a loon, or just throwing out red herrings to distract the opposition.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Not all music, just the music that requires money to get it. Too bad artists. This fight has gone way beyond "supporting the artist." We are propping up a failed institution. Artists, you weren't going to get that hit album anyway, just keep driving the cab -- I know that's what I will be doing to pay the bills.
Music is not food, shelter or clothing. You can live without it. Don't buy any music affiliated with the RIAA and they will cease to exist/be assholes. I am going to start a band that makes songs that are almost the same as hit popular songs and give them away online as mp3 and ogg torrents. I kick ass at music production, so the copies will be good. I will study the law just enough to make copies that fall just outside any laws that say you can't copy a song. Change a note here, some lyrics there. Catch me if you can! All the kids will be dancing to my songs in the clubs and on the subway. In fact, that's a good hook. I will use that...
No matter the technology, whether it be P2P or physically burning a CD, giving a copyrighted file to one of your closest friends is fair use. Giving it to 100,000 of your closest friends isn't.
Life is hard, and the world is cruel
I expect you'll get modded up further, but this is dead on. Fair use is a defense to copyright infringement. The method used to infringe the copyright is largely irrelevant.
The real questions in the RIAA trials are always: was a copy made? If so, was it an authorized copy? And, of course, the RIAA evidence gathering techniques raise plenty of questions on their own.
I expect Nesson's point is being transcribed poorly. I say this because, even though he's at Harvard, I expect a professor to get at least that much nuance in the law. Even if it's only his research assistants helping set him straight.
I should also point out that $150,000 per infringement is a statutory amount. That is, the copyright law gives that amount as the damages for infringement (or actual damages, whichever is more). That's both the incentive to register your copyright (it's good to stick a verifiable date on them) and disincentive to infringe. As a matter of personal opinion, it seems ridiculously high, and perhaps there should be more discriminating infringement penalties ($100 per copied song, for example), but I don't think a statutory minimum is a bad idea in the abstract. I know I'm in the minority, but I don't think copyrights should be entirely abolished. Made sane, sure. Completely removed, no.
--
IAAL, but not YOUR lawyer. This is my opinion, not advice.
A few years ago, I was required to read such a study for a Telecommunications Economics course at my university. The main conclusions of that study were thus (all are direct quotes from the study):
1. "Downloads have an effect on sales which is statistically indistinguishable from zero."
2. "Even in the most pessimistic specification, five thousand downloads are needed to displace a single album sale."
3. "The business model of major labels relies heavily on a limited number of superstar albums. For these albums, we find that the impact of file sharing on sales is likely to be positive."
4. "Our estimates indicate that less popular artists who sell few albums are most likely to be negatively affected by file sharing."
The study was done by Felix Oberholzer from Harvard Business School and Koleman Stumpf from UNC Chapel Hill. It was written in 2004 and I believe the actual study was done in 2002. I can't share the PDF myself because I don't think I have any server capable of withstanding a slashdotting, but a quick Google search turns up this link which appears to be the same: http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf
Like most slashdotters suppose, their basic conclusion is that the majority of file downloaders would not have become paying customers. I think anybody being reasonable would agree that that is true; even if you may have bought a handful of the albums of songs you downloaded, you're very highly unlikely to have bought even a majority of albums from which you download songs.
I'll leave it up to others to determine the study's validity, but there it is and those are its conclusions.
Nesson's assertion is that the four points described in Title 17 are descriptive, not prescriptive, and that Fair Use is a broader and deeper concept arising from common law.
Well the "traditional" four points, as I put it, are just that - they are the aspects of fair use that are typically taken into account, but IIRC, there are cases that explicitly state that those four factors are not exhaustive, so he may have a point.
Indeed, I've sometimes wondered if fair use actually is harmful to those of us who want copyright reform, by acting as a steam valve of sorts: really absurd copyright nonsense is taken care of by fair use, but only slightly absurd nonsense isn't covered by it.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Nevermind if it's fair use or illegal. We can enrich the lives of all mankind with a press of a button. Welcome to the 21:st century.
There is no solidly anchored tradition of public funding for the arts in the U.S.
The foundation grant usually goes to projects that are - in the Puritan tradition - worthy and educational but not explicitly "entertaining."
Pixar is profit-driven.
No deposit, no return. If you don't buy their product, they simply disappear.
Proctor & Gamble's soap opera "The Guiding Light" will end production in its 72nd year on radio and TV. To put this in perspective, Guiding Light still draws about the same numbers as Battlestar Galactica did in its prime.
Five days a week.
P&G is selling household staples in a recession.
It invented daytime drama.
So who do you think is going to underwrite the next epic prime time sci-fi serial?
Expensive. Risky. Technically demanding.
Knowing that the geek will flood the net with commercial free copies? That there is no hope of recovering your costs now or ever?
4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.
IANAL but didn't every *AA just have a record year (again), despite of the general downturn? They can blame it on "movies inspiring people when they are poor" but I'm not buying that.
At least my consuming habits have gone up since P2P; I buy the tv-series I watch (if or when they ever are released where I live) and buy the movies I enjoyed watching. Actually I just bought a book too, on which a movie was based.
Nesson's assertion is that the four points described in Title 17 are descriptive, not prescriptive, and that Fair Use is a broader and deeper concept arising from common law.
Well the "traditional" four points, as I put it, are just that - they are the aspects of fair use that are typically taken into account, but IIRC, there are cases that explicitly state that those four factors are not exhaustive, so he may have a point.
Are there? Do you have any citations? (Ideally stuff that is available on-line). I'd like to read some, especially any that post-date the codification of the four points in Title 17.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
How much of this content is being domestically produced?
My own experience bears this out. I have been using P2P for many years, and have always found it exceedingly fair.
Well, first of all, the statutory language of the fair use provisions in 17 USC Sec. 107 is clear that the four points are not exhaustive. It says:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
And then goes on to list the four factors. The "shall include" is the important bit there.
Also, there was a House Report (HR 94-1476, p. 66) on this legislation (the fair use bit was codified in the 1976 Act) that also supports the idea that the list is illustrative, not exhaustive.
The language of later decisions respects the illustrative nature of the list; e.g., in Harper & Row v. Nation (471 U.S. 539), which was decided in 1985, O'Connor describes the four factors as those "identified by Congress as especially relevant in determining whether the use was fair", thereby implying that if there was some other compelling thing to consider, a court would be free to do that.
One last thing - re: the fourth factor, people seem to think that empirical evidence about the effect of file-sharing on sales will help. They're probably wrong, though. The fourth factor is probably the most dominant one in most analyses, and it's been extended so much - even in the Harper opinion, you'll see the bit about "to negate fair use one need only show that if the challenged use 'should become widespread, it would adversely affect the potential market for the copyrighted work.'" I find it really unlikely that a court will buy the argument that people swapping songs may increase sales in the long run, even if it's true. More likely they will simply say, "Each file shared is an instance where a work could have been sold, so the effect of sharing on the potential market is negative, case closed."
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
As far as I'm concerned, the RIAA and MPAA are the enemy. So taking their stuff isn't piracy, it's privateering. Letters of Marque may be obtained at the pirate bay.
Copyright is not forced on you. You have the right to opt-out of copyright. You can go creative commons. You can declare that your work is public domain.
I don't know how I can opt out of copyright. The moment I try, I'll probably get hit with a lawsuit alleging subconscious plagiarism, like what happened to George Harrison.
musicians *choose* whether or not they want their work under copyright.
But I can't *choose* not to have access to the thousands of non-free works played by my employer, by grocery stores, etc.
Some Joe would not think about claiming a popular song as their own (without a legitimate reason).
But how can I avoid inadvertently claiming a popular song as my own? What should George Harrison have done to avoid copying Ronald Mack's "He's So Fine" into Harrison's "My Sweet Lord"?
Why then do individuals lose ownership of intellectual property after a period of time?
Ignoring for a moment the constitutional requirement of "limited Times" that the U.S. Supreme Court appears to have chosen to disregard in Eldred v. Ashcroft:
Unlike real estate, copyright has restrictions on derivative works. If the term of copyright were perpetual, once a sufficiently large number of works have been published, every possible work would become substantially similar to something that has been copyrighted, even if only by accident, and no new works would be allowed to be published. Spider Robinson explored this issue in his short story "Melancholy Elephants".
Exactly. I think a lot of people either miss this fine point in such discussions, or some (wrongly, I believe) actively disagree with it.
But yes, absolutely right. I believe you have the "moral" (probably not "legal") right to download a copy of anything you've purchased (legally acquired, etc), provided that the copy could have been derived from your purchased version. In other words, exactly what you say: downloading any copy of equal or lesser quality is kosher, downloading higher quality is not.
While I freely admit that this is way out of left field, this isn't as far fetched as it may seem.
May I present for your enjoyment: The Betamax decision. It is the decision that allowed us to own a VCR, and it hinged on whether making a recording of live tv for personal use was "fair use".
Let's put it up agains those 4 rules:
1. Amount of work used: fail. Users recorded the whole program.
2. Impact on sales: fail. A strong argument exists that it reduces demand for sales of that video to people who may have already recorded it.
3. Transformative: Fail. Total fail.
4. Type of work: Fail. TV programs aren't dictionaries or encyclopedeas. Most TV programs are fictional dramas.
So, under the four rules, there is no way recording live tv could be fair use. But the court decided that it was. So personal use recording was called fair use, the VCR was allowed, the copyright owners lost. Incedentally, it meant that the VCR became widespread, and the copyright owners made squillions selling videos, but that's beside the point (or highly relevant!)
So, a court deciding against all 'reason' that what everybody does is fair has a precedent - so his suggestion is not as strange as it may seem!
Prediction for end of Universe #42: Fencepost error in Quantum_bogosort.cpp
Is it possible our sense of what is 'real' or 'fair' has been pushed so far to the 'right' by the outrageous tactics of the RIAA and idea of creation of "Intellectual/Virtual" Property, that we are perhaps buying into some idea of "fairness" as defined in an unreasonable system?
I.e. -- It's generally human to try to be reasonable (in a non emotional/non rant state). A tactic of Republicans during Clinton's term was to present such outrageous demands, that in order to seem "moderate", he had to stand to the right of the line that would conventionally divide Republicans from Democrats.
In a similar way, if the media companies present some outrageous version of reality that what is imaginary
or that which is 'thought' is now something that can be protected, then bought and sold -- that thoughts can be bought and sold, but they package it artfully enough, they might get people to buy into their version of reality and start creating a legal system to defend it. We might start thinking along the lines about what is fair and not fair within that 'created' system -- without seriously or critically thinking about the validity, or, invalidity, of the system created.
When a system starts needing such strong laws to protect it and massive threats of retaliation far out of proportion to the damage done or any sense of 'justice', one needs to look at why such harsh penalties are necessary to engender 'law abiding' behavior in a 'just and fair' society/system. Such outrageous penalties may be put in place out of fear of losing control -- because someone is trying to "legislate" something that is being artificially applied to society that goes contrary to human nature or contary to what is considered "innately" fair in that society.
It could easily be these problems arise because the new, 'created', 'imposed' is being seen as 'unfair' or not just by a significant percent of the population -- it's being forced upon the masses by those who can manipulate the media and legal system so that the average citizen unquestioningly accepts the premise and starts reasoning about 'fairness' within the newly created framework.
Perhaps someone with more advanced insight into the law and social-shaping by creating new "crimes" for new "virtual property" might have a view worth listening to?
How about we start using a new licence: If you distrubute my work, I am entitled to 33% of your profit. Forever. If you distribute my work for free, I am therefore entitled to 0$. Do you guys think this could work?
File sharing is legal.
Obtaining material without authorization is illegal.
Please let's not confuse these two.
There's fair use in quoting since the purpose of copyright is not to stop people quoting but to reward artists.
It wasn't to stop people making it easier for their personal use by translating the works.
It wasn't to stop people being able to report the information as news.
For all these purposes, the use to which the work is put is fair use for that work: copyright WAS NEVER meant to stop them happening and stopping them happening would NOT ensure the progress of the arts. And so they weren't covered by copyrights.
Fair use is not a defense.
Fair use is a sample of those things which copyright was never meant to stop.
Nonsense. I only ever download between 64kB and 4MB of any film at a time.
Yeah, try that one in court and see how far it gets you :-)
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Those epic sci-fi series are not essential to anything. Yeah, some of us will miss them, just like we miss handmade wooden computers like the Sol III. But, if they are gone, they are gone. They will be less of a loss than the loss of newspapers, which are also dying. And if the benefit from losing the sci-fi series (and everything else from Hollywood) is an internet free of hassle from MPAA fuckheads, that sounds like a net win. Freedom of communication is far more important than some damn movies.
You people who think changing the language and calling it "file sharing" are so full of yourselves. You really mean "distributing" in the case of uploading meaning making available for mass distribution when allowing a p2p app to share your stored copyrighted material of which could be a mix of what you have legally obtained and illegally of course.
This is no different than breaking the store door or window down while encouraging passersby to loot.
In the case of "downloading" you become the looter, its really very simple.
I am not talking about burninga copy for a friend or family member but am talking about utilizing the internet which is a medium for mass distribution of copyrighted material that you have agreed to limited use of and of course the illegally obtained copyrighted material of which you have no right to in the first place
One does not have to go to law school to understood the basic moral, ethical and economic principles that have nurtured you from your miserable birth and are now railing against. You have no clue and have no conscience.
But like any good leftist, collectivist, communist what have you, changing the language and calling it "file sharing" makes it what its not, ethical, moral and most of all legal.
One day when you are in the same position, and have labored and born the expense of production only to find your property stolen, will you then understand and maybe not then, your just too fucking stupid and morally bankrupt and are ushering in your own demise since if your here, you are partaking in the digital economy, of which ultimately you are killing. Makes no sense losers, you are creators of content and code and yet believe it should be free, how is it that you will prosper using that model. Guess what you wont and what you see happening now in the economy is just the begining, you may want to learn a trade.
Enjoy Atlas giving it to you hard in the ass
"That idea leads you to a very bad place. "
Actually it leads you to a bad place. I have no problem recognizing the mistake of mislabeling the results of a service as an object. Where you suggest that "Walmart can make their own copies of music and sell it", I say Walmart can pay an artist to create new work which they can then sell. The act of creation does no imply ownership, but authenticity has value. Anyone could re-make a song (it happens all the time) but the original author oft does a better job of playing it.
There's actual freedom from lack of copyright. Think of all the amazing works that will never be created because the perfect song, image, text was held back from use by laws.
Your assumption is that the current system where people are paid through middlemen after the fact is the best system. Drop the publishers and now you have direct access to audiences who are still willing to pay for things they like. It was a requirement in the past for distribution but with functionally infinite replication and near ubiquitous distribution for digital information the only missing piece is marketing.
Pay me to write and I wont need everyone to pay to read.
Pay me to sing and I wont need everyone to pay to hear me.
Pay me to code and I wont need everyone to pay to use my program.
Trust me when I tell you that artists actually want the masses to get their messages, and that while money is nice few artist get rich. Pay up front for the new song/book/application and it's called patronage.
Thanks for the detailed response.
I find it really unlikely that a court will buy the argument that people swapping songs may increase sales in the long run, even if it's true. More likely they will simply say, "Each file shared is an instance where a work could have been sold, so the effect of sharing on the potential market is negative, case closed."
That seems likely to me as well. It's very difficult to get courts to entertain sweeping alternative views. Generally, that's a good thing, but sometimes it leads to unfortunately closed-minded opinions.
In this case, I think it's pretty clear that file sharing will eventually destroy the market for music sales, even though in the short term it boosts sales. I don't think file sharing will destroy the market for MUSIC, in fact I think that the richness of the musical world will explode and that there will be far more musicians making a living from exercising their talents, but the business model will be entirely different. I don't see any way a judge can take the leap to say that it's okay to gut the law that supports an existing market process just because there's probably a new model out there, not yet well-defined, that will accomplish the unstated goals behind the law even better.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
P2P file sharing is not Fair Use. It is First Amendment protected Free Speech. All data is speech. All speech is Free.
The Internet is the world's global conversation, and ones are zeros are the words. We need to defend our speech from the "intellectual property" zealots, the thought police, before they destroy all Freedom.
All data is speech. All speech is Free.
No, others have said something about making P2P illegal because it's used for copyright infringement. However there are perfectly legal uses for file sharing and P2P.
Falcon
Should there be a Law?
When a system starts needing such strong laws to protect it and massive threats of retaliation far out of proportion to the damage done or any sense of 'justice', one needs to look at why such harsh penalties are necessary to engender 'law abiding' behavior in a 'just and fair' society/system. Such outrageous penalties may be put in place out of fear of losing control -- because someone is trying to "legislate" something that is being artificially applied to society that goes contrary to human nature or contary to what is considered "innately" fair in that society.
In my mind this can be said about lots of "criminalized" acts which do not "hurt" anyone in particular. If I invite my friends over to watch a movie I have on DVD, am I not sharing that copyrighted material?
For instance, in California it is illegal to hitchhike and it is illegal to pick-up a hitchiker. However, I can easily go on Craigslist and flag down someone with a car... it's the same as physically doing it, just with some help from my digital road sign.
If I go 5mph over the speed limit and a policeman doesn't have a speed-gun, then he can't possibly convict me of a crime unless I was swirving or driving unsafely... but it is possible for him to say I was driving unsafely when he has digital eyes.
Just because a computer helps with something, that shouldn't stop a person from getting into the mix and saying... well, maybe this isn't hurting anyone. Just as banks now push overdraft fees onto people who go over their bank account limit, wheter it is a $1.50 pack of gum, or a $150 television... because a computer says that person is at fault. I believe the court system is allowing the same thing to happen with laws. They are just allowing the laws to dictate "damage" or "law abiding behavior" instead of deciding to look at the situation with a human perspective and say whether or not the trillion dollar company is actually damaged by a personal computer.
Yes, that has been stated, but it has nothing to do with what I am talking about. I am talking about this article, and it does not have anything to do with the legality of P2P networks themselves.
The defendant is accused of copyright infringement by the RIAA. His lawyer's defensive strategy is to claim that putting copyrighted material on a P2P network constitutes as 'Fair Use' of the copyrighted works in question, and therefore his client is innocent of copyright infringement.
It has absolutely nothing to do with the legality of P2P networks or technology itself. That is not being brought into question at all.
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