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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."
In related news, his blog is complete utter nonsense.
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...
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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
It does, however, highlight the unfairness of a law that makes do distinction between commercial and non-commercial breaches of copyright.
The minus is, the entire product (which has a monetary value) is being distributed against the express wishes of the copyright holder. That's usually considered a bad thing.
"Making available" isn't distribution. Check the NYCL threads, probable google "beckerman"+"making available"
Do not mock my vision of impractical footwear
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... ;)
... 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 ...
As I understand it, committing a crime or tort as an act of Civil Disobedience does not carry a legal justification. The civilly disobedient person is still liable for whatever punishment, restitution, etc. is appropriate for the action.
It may be construed to provide a MORAL justification, resulting in a jury nullification. It may set the stage for pleading a necessity defense. It may be a necessary step in obtaining the standing to prove in court that a law is unconstitutional and getting it struck down. There may be so many others participating and/or the cause may be so popular that the authorities decide to let it drop. And so on. But absent something like that, expect to be a jailed and/or paupered martyr for the cause if the authorities bring you to court over such an act.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
"Making available" isn't distribution. Check the NYCL threads, probable google "beckerman"+"making available"
I'll make it easier. Read Capitol v. Thomas, Atlantic v. Howell, Atlantic v. Brennan, and LondonSire v. Does.
Ray Beckerman +5 Insightful
The defn of fair use has nothing to do with how the content is conveyed. It has to do with what content is conveyed and the context in which it is used.
but have you considered the following argument: shut up.
I'm sure NYCL or someone else who knows all the ins and outs can correct or expand upon this.
Don't be so sure.
Ray Beckerman +5 Insightful
I know a truly staggering number of people who buy games and then play a pirated copy.
A bullet may have your name on it but splash damage is addressed "To whom it may concern."
that's kind of the joke. GP is making a parody of people who like to use big numbers irresponsibly.
What's the value of information that you don't know?
It's difficult to take anything that you say seriously when you use such hyperbole.
Seriously, grow up. If you can't argue your point without gross exaggeration, perhaps you should pause for a moment and think about your position rather than resorting to emotional outbursts.
Theaters are losing ground? since when? Just because the industry says so doesn't make it true.
My blog. Good stuff (when I remember to update it). Read it.
Maybe doing something because you want to share with people is considered better than exploiting the situation for profit? A good (or less-bad) intention behind an action makes people feel more lenient towards someones.
The revolution will not be televised... but it will have a page on Wikipedia
I was under the impression they generally target the older style of network, where the default is to seed a downloaded file indefinitely, and where any node will send a list of all the files it's sharing to any other node (although I would love to get some confirmation of this).
All of the RIAA's cases I have ever heard of involved allegations regarding either the FastTrack protocol (e.g. Kazaa) or the Gnutella protocol (LimeWire).
Ray Beckerman +5 Insightful