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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...
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
It's reasonable for an artist to expect to be able to profit from their work for a period of time. Protecting that right encourages others to spend the time to create similar work.
The problem is that now that "period of time" is effectively forever, which is bullshit. Those works become a part of the collective culture of a society and it's not right for corporations to continue to hold an intellectual monopoly on those works, long after the original artists have died.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
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.
Only if you're running a major bank or large manufacturing corporation into the ground.
These posts express my own personal views, not those of my employer
(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
It does, however, highlight the unfairness of a law that makes do distinction between commercial and non-commercial breaches of copyright.
The damages (as they are) to the rightful copyright holder are identical whether the violator made a profit off the violation or not.
This line of thinking confuses the creative genius with the entrepreneur.
The entrepreneur anticipates consumer need and employs capital in production to satisfy that need. He does so for the sake of profit. The creative genius, on the other hand, is rewarded through the process of creating itself.
To dispense with economic theory, I fall into both categories. I run a business, but I'm also a musician and an artist. I've written, recorded, and released an album. I've written stories and painted pictures etc. First of all, I have never met a single musician who writes music with any kind of expectation of profit. Profit is never the motive. I've met and jammed with lots of people who perform for profit, or teach for profit etc. In these cases they see the value of their product or service and will exchange that product or service. However, when they sit down to write a song, they never consider exchange. They write for the sake of writing.
If you ask any of them, myself included, if copyright has ever aided them financially they will think for a moment and then, reluctantly, answer "no". However, that is not to say that they are against copyright. Usually, they like the idea of copyright because morally they dislike the idea of some "greedy capitalist" being able to copy / redistribute and make money using their creation. However, I then ask them whether their status as a musician, and consequently further prospects as a musician and song-writer, would be aided or hindered if others distributed their work for them ?
Then they pause and think.
As a song-writer our biggest challenge is distribution. Getting radio play is nearly impossible for an independent artist. The Internet has helped tremendously, but we still have to labour really hard to get our songs up on all of the music sharing sites. Even then, few people bother to listen to us because there's so much out there that people put up their filters and wait for their friends to recommend new stuff etc.
To go back to the economic argument, if radio stations and Internet start-ups did not have to worry about copyright then web-sites, and DJs and radio stations would play and share much more music than they do now. People probably wouldn't share much more, since most people share copyrighted music in spite of the law, but in theory artists would get much more exposure while having to do less. As a result, the better musicians could conceivably get a fan-base much more easily, doors would open for them and their prospects as a professional musician would widen.
In conclusion, the only people who actually benefit from copyright are the distributors. Musicians are not distributors. It's a hard business to distribute music, and it's much harder thanks to copyright. That's it's whole point. To keep competition out. Disturbingly, competition in the mainstream music industry almost always includes the artists themselves.
If the violator made profit, that could have went to the copyright holder. So there is a potential loss.
On the other hand, if there was no profit, it is not missing from the copyright holder either.
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.
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.
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.
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IAAL, but not YOUR lawyer. This is my opinion, not advice.