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Harvard Law's Nesson Says P2P Is "Fair Use" 393

Posted by timothy
from the hopefully-mix-tapes-are-a-corollary dept.
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."
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Harvard Law's Nesson Says P2P Is "Fair Use"

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  • Pipe dream (Score:5, Insightful)

    by JJNess (1238668) on Thursday April 02, 2009 @05:31PM (#27436875)
    As much as I'd like to agree with him, I think someone's reaching just a little too far...
    • Re:Pipe dream (Score:5, Informative)

      by linhares (1241614) on Thursday April 02, 2009 @05:44PM (#27437055)
      He's going to try a jury case, and if he gets one, it should be easy to stamp on the jurors that US$150000,00 PER SONG is a bit overwhelming. Since the labels know that the jurors might agree with that, I think that the labels could drop the case altogether. From Ars, Assuming the jury buys this argument, Nesson can then tap into a basic sense of fairness to claim that a federal trial with the potential of $150,000 in damages per song is unfair in a broad sense, especially when Joel was (allegedly) a noncommercial P2P user back in 2003, when rightsholders were still dragging their feet in "licensing commercial alternatives for kids to buy single songs in digital downloads. [arstechnica.com].

      In related news, his blog [harvard.edu] is complete utter nonsense.

      • Re:Pipe dream (Score:5, Informative)

        by severoon (536737) on Thursday April 02, 2009 @06:37PM (#27437751) Journal
        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.
        • Bingo (Score:4, Insightful)

          by Petrini (49261) on Thursday April 02, 2009 @08:20PM (#27438949)

          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.

      • Re:Pipe dream (Score:5, Interesting)

        by cenc (1310167) on Thursday April 02, 2009 @07:45PM (#27438535) Homepage

        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.

    • by linzeal (197905)
      You may not be too far off this guy is defending the founder of NORML against possession. However, it should be noted that he does represent a populist sentiment in regards to the sharing of files through P2P programs and if he were to be able to attempt to show the futility in the RIAA's attempt at reifying every possible rendition of their product in any media for any use as limited they would be forced to define more explicitly what exactly the fair use doctrine means in an age with terabyte drives cost
      • Re:Pipe dream (Score:5, Interesting)

        by Idiomatick (976696) on Thursday April 02, 2009 @06:03PM (#27437293)
        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!)
        • 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!)

          (gasp) Oh dear gods, for a mod point just now...

        • Thank you. That is now my sig on another forum, for at least a little while.
           
          Very nice way to show how RIDICULOUS the monetary value placed on electronic goods is. Thank you once again.

        • by mangu (126918) on Thursday April 02, 2009 @07:25PM (#27438265)

          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.

          • by LowSeven (1437105) on Thursday April 02, 2009 @09:20PM (#27439589)
            > 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 ?
        • by Nautical Insanity (1190003) on Thursday April 02, 2009 @07:38PM (#27438455)

          Or around 3 times the GDP(yearly) of Jamaica.

          How many Libraries of Congress is that?

      • Re: (Score:3, Insightful)

        You may not be too far off this guy is defending the founder of NORML against possession.

        Yeah, so? What's your problem with NORML [norml.org]?
        I would argue that the only relationship between the RIAA's activities concerning file sharing and our
        government's policies on marijuana are the shear idiocy of both. Oh, and I guess this lawyer.

    • Re:Pipe dream (Score:5, Insightful)

      by alvinrod (889928) on Thursday April 02, 2009 @05:55PM (#27437209)

      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.

      • by Korin43 (881732)
        I think if you buy the DVD you don't have the right to download a higher quality copy (since you were presumably buying it knowing that you were getting a lower quality version), but if you buy the Blueray version, downloading the DVD copy should be legal since you bought a higher quality version and it would be trivial to create it if you had your original--although I could possibly see an argument that you could only download the DVD version if there isn't a torrent of the Blueray version available.
      • Re:Pipe dream (Score:4, Insightful)

        by quickOnTheUptake (1450889) on Thursday April 02, 2009 @06:56PM (#27437947)
        It's beside the point. The RIAA isn't going after people for downloading, they are going after them for uploading.
        That's how they catch people. And that is why they are claiming such high damages.
        Even if you have a license to own a copy of the work, downloading it on P2P means that you are offering to distribute it. And you are doing so without even attempting to find out whether the people downloading have a license.
        Your defense would be, in some ways, like standing on a street corner handing out burnt copies of $NEWLY_RELEASED_ALBUM to anyone who asked, and when apprehended, claiming that you assumed that only people who owned a license for it would take copies. It might work if you made the people sign an affidativt that they do own a license before giving it to them, or even just made a general announcement that your service is only to be used for legal means by people who have a license to own a copy. But short of something like that I don't see how you can claim you aren't just handing out unlicensed copies.
        (For the record, I don't like the music industry or current copyright law any more than the next guy. I just don't like strawmen.)
      • Re:Pipe dream (Score:4, Insightful)

        by jwhitener (198343) on Thursday April 02, 2009 @08:15PM (#27438865)

        I agree. I purchase tons of dvd's, and if one gets scratched, I have no qualms about downloading it. Or if I'm at a relatives house, downloading it for all of us to watch.

        It just 'makes sense' from a user's standpoint. I'm depriving no one of anything, I paid them already, fair use should apply.

        However, what the RIAA/MPAA sue over, isn't the individual downloading something (usually), its more about them uploading. You are acting as a distribution center for copyright material.

        I can see a download easily as fair use. It is harder to justify the upload.

        If a total stranger came up to me and said, "hey, could I make copies of your DVD's", that is not exactly fair use. I could kinda fib a bit and say "well, he's my friend and I loaned him my copies".. that might fly. But what if my entire neighborhood copied my DVD's? Certainly not fair use.

        I really don't know what the answer is for copyright law, but from a user perspective, it sure seems like downloading something you own should be OK.

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

      I personally cannot decide if he's reaching too far or not until I get an actual number of how much is really 'lost' by piracy. (Funny how internet usage is growing every year but Video game revenue keeps going up and up!)

    • I dunno about that. How many times daily do you listen to the radio and hear the same songs provided for the simple cost of an occasional commercial interruption? It can be easily argued that the artists and the RIAA have placed their songs out to be shared on public radio, so what's wrong with similar arrangements elsewhere? I share my CD with you and you make copies and share with a friend a song or two on a mix CD. I don't see much difference, only the medium changes from plastic with a bit of tin foil t

    • Consider Canada (Score:3, Interesting)

      by djKing (1970)

      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 RIA

    • by lpq (583377) on Friday April 03, 2009 @01:57AM (#27441425) Homepage Journal

      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?

  • Methinks... (Score:5, Interesting)

    by AKAImBatman (238306) * <akaimbatman@gmai[ ]om ['l.c' in gap]> on Thursday April 02, 2009 @05:32PM (#27436879) Homepage Journal

    ...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.

    • Yeah, I would have to agree. A quick glance at the blog reveals a marijuana category [harvard.edu].

      ...Except three of the four articles aren't about marijuana. They're political poems sent into the blog.

      The oldest post does mention marijuana law... in another poem.

      Maybe _this_ is the ??? before "Profit"??

    • Re:Methinks... (Score:4, Interesting)

      by SatanicPuppy (611928) * <Satanicpuppy AT gmail DOT com> on Thursday April 02, 2009 @05:42PM (#27437029) Journal

      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: (Score:3, Interesting)

        by AKAImBatman (238306) *

        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.

        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 incre

        • Re:Methinks... (Score:4, Insightful)

          by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Thursday April 02, 2009 @08:15PM (#27438867) Journal

          I think the law is beside the point. Not for him of course, but in general. The law isn't in sync with reality. Millions of people can copy and share trillions of bits quickly, and there is no practical way for any authority to know about it. What isn't known can't be stopped, counted, recorded, monitored, regulated, taxed, or otherwise controlled. Sharing is like sex, but with even less evidence. Sharing certainly can't be outlawed with any reasonable expectation of effectiveness, same as with trying to outlaw specifics kinds of sexual acts. Even ludicrously drastic measures such as shutting down the Internet or DRM crippling every PC and consumer electronics device ever made couldn't stop the sharing.

          Even if it was possible to monitor sharing, the sheer quantity might well overwhelm any such monitoring. The Stasi grappled with that problem. It was simply not possible to hire enough secret police to monitor everything they wished they could. I mean, taking screen shots of IP addresses is ridiculous on so many levels. Might as well patrol the beaches, trying to stop the ocean from "stealing" sand. And then there's encryption. Just try to figure out which grains of sand the ocean can have, and which ones it can't, when they can't be told apart. By far the most effective deterrent has been appeals to morality and people's better natures. That still exists but it's wearing thin thanks in no little part to the totally unfair Mafia-like terror and extortion campaign so called "champions" of copyright are waging.

          The law needs to get with the program. Copyright must go, and eventually I think it will. I wonder if he could get somewhere in court with arguments along these lines. IANAL but I believe there's a principle about equal applicability, that is, you can't have a law that is applied utterly arbitrarily to a vanishingly small fraction of those who are allegedly guilty. He's just the unlucky sod who gets to be the martyr of the moment dragged in for Inquisition style questioning and ultimately sacrifice on the altar of the copyright fanatics, who however much they rage, froth, foam at the mouth and torture victims, can't impose their religion, which in any case isn't even logically consistent. And it seems they kind of know the futility of their goals, but they keep working at it for the extortion money and because they secretly enjoy torturing people. Spoils the appearance of legitimacy when the Inquisition can be bought off. Utter hypocrisy. When the judge in the Napster case exclaimed "you have created a monster!", she merely showed just how far the law needs to go to come to grips with reality. I wish him luck, but I think we're stuck with copyright for the immediate future.

      • Re:Methinks... (Score:4, Informative)

        by Nefarious Wheel (628136) on Thursday April 02, 2009 @06:18PM (#27437469) Journal

        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"

        • Re:Methinks... (Score:5, Informative)

          "Making available" isn't distribution. Check the NYCL threads, probable google "beckerman"+"making available"

          I'll make it easier. Read Capitol v. Thomas [blogspot.com], Atlantic v. Howell [blogspot.com], Atlantic v. Brennan [blogspot.com], and LondonSire v. Does [blogspot.com].

      • Re:Methinks... (Score:4, Interesting)

        by AvitarX (172628) <me@brandywinehundre[ ]rg ['d.o' in gap]> on Thursday April 02, 2009 @06:23PM (#27437539) Journal

        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:Methinks... (Score:5, Interesting)

        by Bigjeff5 (1143585) on Thursday April 02, 2009 @10:22PM (#27440105)

        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: (Score:3, Insightful)

      by Kamokazi (1080091)

      Eh, he's got a shot. Remember, judges are usually lawyers, too. Old ones that may have a hard time understanding technology...something the MAFIAA has capitalized on so far...maybe it can work both ways.

      I don't know how happy I would be if it gets decided in his favor, really. 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

      • Re:Methinks... (Score:4, Insightful)

        by AKAImBatman (238306) * <akaimbatman@gmai[ ]om ['l.c' in gap]> on Thursday April 02, 2009 @06:17PM (#27437451) Homepage Journal

        Remember, judges are usually lawyers, too. Old ones that may have a hard time understanding technology...something the MAFIAA has capitalized on so far...maybe it can work both ways.

        If every other lawyer in existence is telling him he's nuts, does he really have a solid chance with a judge?

        I doubt it. She may listen to his ramblings, she may even humor him a bit. But unless he starts convincing people real quick-like, the judge isn't going to buy it any more than his peers.

  • by gijoel (628142) on Thursday April 02, 2009 @05:44PM (#27437041)
    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.
  • by plover (150551) * on Thursday April 02, 2009 @05:44PM (#27437045) Homepage Journal

    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.

    • I actually agree with this tactic. We need to be fighting fire with fire here. Prosecution has gotten more and more ridiculous. There's no reason defenses shouldn't follow suit. If that's what's necessary to beat these people back then let's do it.
  • by ceoyoyo (59147)

    "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).

  • NewYorkCountryLawyer (Score:5, Informative)

    by TheRaven64 (641858) on Thursday April 02, 2009 @05:51PM (#27437141) Journal
    Since most people don't RTFA, I thought I'd share this gem, where Ars quotes Ray Beckerman [slashdot.org]:

    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...

    • Re: (Score:3, Informative)

      Since most people don't RTFA, I thought I'd share this gem, where Ars quotes Ray Beckerman [slashdot.org]:

      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...

      You got that right, Raven.

  • 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.

  • 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.
    • by langelgjm (860756) on Thursday April 02, 2009 @06:04PM (#27437305) Journal

      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.

      • Re: (Score:3, Informative)

        by Kindaian (577374)

        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 window

    • Red herring? (Score:5, Interesting)

      by Ungrounded Lightning (62228) on Thursday April 02, 2009 @06:15PM (#27437425) Journal

      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: (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

  • Why? (Score:5, Insightful)

    by migla (1099771) on Thursday April 02, 2009 @06:04PM (#27437301)

    (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.

  • sounds like this guy has been to the chewbacca school of law! [wikipedia.org]
  • I've to agree... (Score:3, Interesting)

    by Kindaian (577374) on Thursday April 02, 2009 @06:12PM (#27437385) Homepage

    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

  • by Nom du Keyboard (633989) on Thursday April 02, 2009 @06:14PM (#27437407)
    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.
    • Re: (Score:3, Informative)

      ... 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 nullifi

  • 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.

    • What makes you think that's sane?
      • Re: (Score:3, Interesting)

        by BlackCreek (1004083)

        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.

  • by Anonymous Coward on Thursday April 02, 2009 @07:00PM (#27437985)

    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.

  • by robbak (775424) on Thursday April 02, 2009 @11:47PM (#27440725) Homepage

    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!

How many QA engineers does it take to screw in a lightbulb? 3: 1 to screw it in and 2 to say "I told you so" when it doesn't work.

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