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."

Comments

Pipe dream

[JJNess]

As much as I'd like to agree with him, I think someone's reaching just a little too far...

Re:Pipe dream

[alvinrod]

I'd consider it fair use for anyone who has a right to a digital copy of the file, to download that file regardless of who uploads that file to them.

If I've purchased the media on a physical device such as a CD, DVD, etc. or a digital copy of it from some media store that has been licensed to sell the media, I feel as though I have a right to digital copies so that I can make a backup copy in the event that the physical media is damaged an unable to playback or to ensure that the media can be used on different devices because DRM on the file would prevent me doing so otherwise.

There are probably a few finer points to my philosophy that could stand some fleshing out (e.g. does purchasing a DVD movie entitle me to a digital Blu-Ray/HDDVD copy with higher quality?) but it's probably not worth going into.

If we can accept that as fair use, then by extension P2P file sharing should only be illegal in the event that a person isn't entitled to own a digital copy of some work. It's not really much of a reach if you're willing to accept that my rights as a consumer trump any corporations rights to require me to purchase the same media over and over again and prevent me from enjoying in the way I want to do so.

Even though some people are going to abuse P2P systems and obtain material that they haven't rightfully paid for, that shouldn't be a reason to remove a system that works well for responsible users.

Re:Pipe dream

[Idiomatick]

At 150,000$ per mp3 it would cost $28,597,527,272.73 to fill the drive. Or around 3 times the GDP(yearly) of Jamaica. Oh and with a 45$/mnth connection you can download that every two days.
So... with 150$ and a month you can steal 460billion dollars worth of mp3s. Or the yearly gdp of Sweden.

(I totally get the RIAA now, really big numbers are fun!)

Re:Pipe dream

[severoon]

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.

Re:Pipe dream

[alvinrod]

Eventually someone has to stand up to bullshit laws. A popular solution is to prevent them from being passed in the first place, but it seems as though it rarely works in the real world considering that politicians generally have little or no knowledge of the things which they seek to legislate.

Short of that, someone has to either get charged with the law and present a compelling argument of why the law is complete shit so that it gets tossed or lobby a congress critter to pass a new law overwriting the old one.

You're absolutely right that if I went to court over it, I would care a whole lot, but from society's point of view it's completely worth it. I suppose I could always get a complete shyster lawyer myself and countersue them for legal costs, emotional damages, etc.

It took a black woman to completely disregard a bullshit law and reap all the consequences associated with breaking that law in order to ignite the spark to fix that law and many of the other similarly crap discriminatory laws. Eventually there's going to be another person like Rosa Parks that gets sick of the shit we have to deal with and won't allow themselves to be bullied by the powers that be. With the shift in the attitudes of people it's only a matter of time before this happens. It's only a question of how long until the pot boils over.

Re:Pipe dream

[cenc]

My father was a criminal defense attorney / prosecutor. His most effective defense in front of a jury, "the sucker had it coming". Seemed to work especially well when the client was obviously guilty such as bar room fights with 100+ witnesses.

Many of his acquittals and jury nullifications he got in his carrier where some variation on that very simple theme. This argument is not that much different. Everyone likes fairness, even if it is not fair.

Just about anything the RIAA might come up with will look more complex, confusing, and simply unfair.

Methinks...

[AKAImBatman]

...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.

Re:Methinks...

[NewYorkCountryLawyer]

"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.

And in summation

[gijoel]

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.

Re:Lessig?

[SatanicPuppy]

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.

Re:Lessig?

[Zordak]

While lauded on Slashdot, Lessig only wants to restore copyright to the original length instead of abolishing it completely

Well now, that's just crazy talk. Restoring copyright to a reasonable term? Madness, I say. It's not far down that slippery slope before we get to the point where we give Congress the right to promote the progress of science and useful arts by granting time-limited monopolies to authors and inventors. How far we have fallen from the purity of our true common law roots! We must re-enthrone the true constitutional principle, embodied in the 32nd Amendment, that "Congress shall make no law abridging the right of the people to keep and bear w4r3z w00t!"

My statement on "fair use" & p2p file sharing

[NewYorkCountryLawyer]

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.

Re:Finding Easter Eggs in the Legal Code

[syousef]

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.

Why?

[migla]

(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.

Re:Finding Easter Eggs in the Legal Code

[czaby]

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.

Re:Whose side

[NewYorkCountryLawyer]

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?

So if you hired a lawyer to represent you in a litigation, you would want that lawyer to be more concerned with the "openness of information" about your case than with protecting your interests?

You are a most unusual and wonderful person; I would like to meet you sometime.

That's why no one is harmed

[mangu]

with 150$ and a month you can steal 460billion dollars worth of mp3s. Or the yearly gdp of Sweden.

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.

Re:That's why no one is harmed

[LowSeven]

> How much do teens get as allowance? $100/week or so? ONE HUNDRED BUCKS PER WEEK???? What planet do you come from that teenagers get $100/week ?