Harvard Law's Nesson Says P2P Is "Fair Use" 393
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."
Methinks... (Score:5, Interesting)
...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... (Score:4, Interesting)
It's faintly conceivable that he may be attempting to assert that p2p distribution provides a positive benefit to the copyright holder in the form of increased exposure.
In other words, that P2P is the worlds most efficient viral marketing campaign.
The plus is, p2p is non-commercial, and non-commercial use is usually considered favorably. 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.
Re:Methinks... (Score:3, Interesting)
It's a bit hard to understand exactly what it is he's claiming, since he does not appear to publish any concise treatise of his legal theory. He does appear to claim that the four question test is invalid as he feels that Fair Use is a Common Law construct that supersedes the current precedent for Fair Use.
To which my only response is incredulity. The legal system simply isn't setup in such a way that anyone can come in and claim that the last hundred years of precedent is completely wrong. You'd have to have an incredibly powerful argument to overturn that sort of precedent.
Now supposedly he wants to get a jury trial in hopes of convincing them. To which I'm left scratching my head. Is he counting on jury stupidity? Or insanely good ability to follow convoluted logic? His own students (who are doing most of the work) are extremely wary of this tact and have voiced opinions that they don't think it's going to work.
But as I said, maybe he'll prove me wrong.
(Then again, he might just piss off the judge instead. She didn't seem very happy when he was recording their phone call.)
Re:Lessig? (Score:5, Interesting)
Stop think of P2P as the enemy... try thinking about it as "free publicity"
Re:Pipe dream (Score:5, Interesting)
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!)
I've to agree... (Score:3, Interesting)
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
Red herring? (Score:5, Interesting)
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.
Re:Red herring? (Score:4, Interesting)
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.
I hope you're right, and it's all a clever diversionary tactic intended to confuse and distract friend and foe alike from the real objective.
Re:Methinks... (Score:4, Interesting)
I pretty much think this guy is the Jack Thompson we want to win, except if people like that get to win, then Jack Thompson might too, and we lose.
Re:Lessig? (Score:4, Interesting)
Every single good or service that has ever been invented has been done to satisfy some kind of need or desire.
When you buy something, you are acting to relieve some form of uneasiness. Maybe it's just boredom or to be part of a fad (the pet rock comes to mind), or maybe it's for survival (food, clothing, shelter etc.). But every single product or service has only existed because people, at the time they were consuming that product, felt that it made their lives better.
So if people are staying home to watch movies, then either the need that going to the theater once satisfied is being better satisfied by other means, or the cost of going to the theater is no longer in line with their subjective valuations regarding what doing so is worth to them, or the need has vanished all together.
Assuming the need is being filled by something better (or cheaper or both), we now have some new invention that replaces the utility of a movie theater. If movie theaters all go out of business then those entrepreneurs, capitalists and employees will go into production that fills more urgent needs.
This process always involves a restructuring and people will be temporarily unemployed. But any attempt to force conditions to remain the same will be futile in the long run, and will only prolong the restructuring process. It's thus better for everyone if the movie theaters either go out of business or shrink to satisfy a smaller market.
Re:In The Nethelands it is fair use (Score:3, Interesting)
What makes you think that's sane?
The fact that I believe that people are entitled to have access to culture.
The working model here in the NL shows that you can guarantee the right to access cultural works, and still have a working healthy (lucrative) market for artists and the like.
Re:Lessig? (Score:3, Interesting)
Absolutely. But recording artists typically get nothing from RIAA's efforts to 'collect royalties and damages'. RIAA didn't create the work, why should they get the money?
How about we shred the 'work for hire' contracts of the media companies, make copyright a limited term and not transferable ( why should my great great grandkids profit on something that I created 20 years ago? ) to a corporation or 'holding company', and set it to expire after the death of the original copyright holder?
Consider Canada (Score:3, Interesting)
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.
Re:Red herring? (Score:3, Interesting)
I wouldn't mind him pleading fair use as an alternative defense. That way we might at least get a read on it. A lot of people seem to think "sharing music" is, or should be OK. (Charlie's point that laws have to be comprehensible to those expected to obey them seems cogent - and how DO you explain the boundaries of Fair Use to a kid?) While I'm with you in thinking it won't fly, nobody else seems to be even attempting it. And I can't think of many bigger guns to take the shot than a Harvard Law School team lead by a professor with Charlie's track record.
But IMHO he'll be doing his client a disservice if that's the ONLY shot he takes. (Unless his client WANTS to risk martyrdom over this point and to keep the other issues off the table to keep the court from avoiding this issue. Or unless it's the only shot available.)
Re:Lessig? (Score:3, Interesting)
It's a hard business to distribute music, and it's much harder thanks to copyright.
This is a really interesting point, since the whole PURPOSE of copyright is -- or was, anyway -- to provide a way to motivate and fund distribution.
The statesmen who wrote the first modern copyright laws did it because they didn't want books that people had written moldering away unavailable to the public simply because no publisher would take a chance on printing up copies that may or may not sell. The reason they were unwilling to take the risk is because if a book proved popular, other printers would quickly start churning out copies. Of course the original printer would still make money on a successful book, but not as much... and not enough to offset a number of unsuccessful books.
So, the copyright monopoly granted to the author enabled negotiation of printing contracts that guaranteed the risk-taking printer lots of money if the book succeeded.
History lesson out of the way, what you're saying is that, in your opinion, and with respect to music, copyright law is not only no longer encouraging distribution, it is impeding distribution.
Re:sharing (Score:3, Interesting)
This is probably the edge case. Probably not a public performance but there may be circumstances where it would be considered one - for example, if it was widely advertised and a large number of non-residents were there.
It's an "over the edge case" in my experience. We got busted for this years ago at my hall of residence, and the audience was entirely composed of student residents + a couple of RAs. That's right, the hall was no longer allowed to rent a DVD (or tape back then?) for the locals to watch in the main TV/rec room. Yet ff a student rented one, and watched it in a smaller floor TV room, that seemed to be OK...
Re:Can't...Help...It.... :-) (Score:3, Interesting)
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.
Just boycott music (Score:2, Interesting)
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...
Re:Pipe dream (Score:5, Interesting)
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.
Re:Pipe dream (Score:2, Interesting)
Re:Methinks... (Score:5, Interesting)
Baen Books does this very thing, they offer 100% free, complete versions of the ebooks (high quality, in multiple formats, not shit) by any of their authors willing to participate. 43 authors choose to do so, and the vast majority of them saw a major boost in sales of their entire catalog when they did.
http://www.baen.com/library/ [baen.com]
Eric Flint, one of the co-founders of the free program, spells it out with his own book sales. Basically, he made 85% of his money on a book of his in the first six months, another 8% or so the following six months, about 1.5% for the next year. That's when he put it online for free, and a funny thing happened. His sales doubled from the previous 6 month period, and had grown another 50% for the following period.
My money is on "pirated" music being the only thing propping the industry up right now. If they actually find a way to snuff out internet music sharing, it very well could be their downfall.
Re:Wrong. Fair use means "no need for (c)" (Score:2, Interesting)
you shouldn't have to read between the lines... furthermore if one is required to in order to understand any law they should no longer be held accountable for violating such a law.
to retort, if a layman cannot understand a rule they should not be held liable for violations of said rule.
so, if the law said simply: that individuals don't have the right to make 'any' copies of materials they didn't originally make without permission, or the right to aid others in experiencing or acquiring said illegal copies--whether it is known to them that they are illegal copies or not. then fair use would no longer exist, and file sharing and public displays of copied materials would be illegal.
however, the law does not say this.
personally, i think the whole ideas of piracy and copyright need to be redefined to disregard 'free use', and by that i mean any use that doesn't cause the user to profit. so as long as you're playing cam copies of movies in you garage for free for neighborhood kids, you cannot be sued or charged with a crime; and as long as you're not producing CD's or selling AVI's online for profit you cannot be sued or charged with a crime.
how someone could be charge with a crime for giving something away for free is beyond me. albeit i understand copyrights were put in place to protect an inventors right to profit from their invention... but wasn't it really to keep other people from profiting off their ideas, not to keep individuals from using those designs for themselves.
can't i go online and snag a copyright for a folding table, make it at home and use it, without being sued for copyright infringement. and what happens when i get a table from IKEA and give the table i made to my neighbor... am i a pirate for distributing copyrighted materials for free? could i go to jail or be sued yet again?
wouldn't that lawsuit be considered not only unfair, but blatantly stupid, and thrown out of court?
i see no difference between the table and an MP3 file.
if you look at the the whole situation as simply as you can it's ridiculous. and the solution is obvious. simply rewrite the laws to allow for 'free use' and 'sharing'. these things don't hurt anyone!! we're all taught they're good things our entire life!
i know i wont be teaching my children not to share for fear of punishment by selfish men, and neither should you.
Re:That's why no one is harmed (Score:3, Interesting)
I don't really understand how your argument is relevant. Maybe game companies aren't currently being hit hard with piracy. But, the real argument is not about game companies or the current state of game piracy. The real argument is about something much bigger: should piracy of intellectual property be acceptable? Even if (for the sake of argument) I accepted the premise that companies weren't getting hurt by piracy, it still doesn't tell you whether or not piracy *can* hurt companies. If we're talking about laws, then we're talking about systems that will be in place for decades. Essentially, you have to argue that piracy does not and will not ever harm companies no matter how much piracy increases.
I think the "DRM is about control" arguments are really just justifications to allow pirates to hate companies, and therefore, legitimize pirating. People don't want to be controlled. But, the reality is that companies don't care about controlling people. They care about earning a profit. Piracy undermines the ability of companies to get paid for work. Because the laws can no longer protect creators from the onslaught of piracy, companies have been going after technological solutions - DRM - to do what copyright law used to do. Saying "DRM is about control" is really about stirring up people's emotional desire to not be controlled, and create a backlash.
(Technically, the price you pay - $60 - is not the money the developer earns. In fact, most major stores, like Best Buy, take about 50% of the shelf-price as their own earnings. Publishers also take a cut.) But, ignoring that, yes, in this case the developers earned back their investment. Had piracy been higher, this might not be true. Essentially, you're left arguing that piracy should be allowed because this game - in this particular case, under current rates of piracy - the developer earned back their investment, and therefore, higher rates of piracy won't hurt anyone.
Those poor bastards in millions of dollars of debt... I'm drafting a letter to my congressman right now to demand he put an end to piracy by the end of the year. This simply cannot continue.
Like I said, it's not about whether they turned a profit in this particular instance under current piracy rates. It's about whether or not piracy - in general - should be acceptable. Let's say we accepted piracy. Let's say that in 10 years, piracy rates resemble rate you see in, say, China or Vietnam - which is in the upper 90% range. If you think piracy should be acceptable, then what can you possibly say if businesses stop creating content because it has become unprofitable? You can't say anything - just throw up your hands and say, "gee, when everyone ignored copyright, it was great for a while, then the companies disappeared, and we're left living with content created in decades past - because we've seriously undermined the ability of companies to survive by creating new intellectual property."