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No evidence P2P is illegal, Harvard law professor tells judge
19 May 2009 | 10.53 Europe/London
A Harvard law professor is basing his defence of an accused American file-sharer on the idea that using peer-to-peer networks falls under "fair use" and is therefore legal. Charles Nesson says he can win over a jury and overcome the "four factor test" on fair use that could otherwise find his defendant guilty of breach of copyright when the case starts this summer.
Professor Nesson, who will represent the accused Joel Tenenbaum, has now submitted his court filings ahead of the legal proceedings. He's arguing that file-swapping is of no provable harm to rights holders, wholesale file-sharing isn't illegal and that statutory damages can't be applied to P2P users. Part of the defence will rest on the assertion that "individual noncommercial copying results in no provable actual harm to the copyright harm holder;" he seems to be relying on the tenet of American law that states everyone is "innocent until proven guilty" and the lack of evidence showing that P2P restricts record sales.
In US federal law, a successful fair use defence depend on satisfying four factors, which the Stanford University website states as following:
In order to better tilt the odds towards his client's favour, Nesson wants the jury to take other factors into account too, such as: "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."
Experts in copyright law are sceptical Nesson can win the case on fair use grounds. Lawyer Lawrence Lessig (a tongue-twister if there ever was one) wrote him an email saying that "of course [Tenenbaum's conduct] was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn't."
So what about in Blighty? In the UK, the equivalent of "fair use" in copyright law is "fair dealing" - and you'd have almost no chance of basing a successful defence for file-sharing around it. Here's a couple of excerpts from the media law bible, McNae's Essential Law for Journalists:
P2P networks might not be in financial competition with record companies, but they essentially do compete commercially - as does a company that offers a service for free, taking business from elsewhere. While sharing a small section of a song - for example, a twenty second clip - could constitute fair dealing, sharing a whole song or album would not (the "amount and importance" of the material being too great). And if the track itself was obtained through file-sharing, and that was understood to be "unfair means" by a judge, then future sharing of the track itself would not be covered in the first place.
If Nesson and Tenenbaum do win the case, it would be a landmark precedent that would - in the United States at least - legalise P2P usage and file-sharing. Proceedings will start in Massachusetts federal court in the summer.
[ ars technica ]
Professor Nesson, who will represent the accused Joel Tenenbaum, has now submitted his court filings ahead of the legal proceedings. He's arguing that file-swapping is of no provable harm to rights holders, wholesale file-sharing isn't illegal and that statutory damages can't be applied to P2P users. Part of the defence will rest on the assertion that "individual noncommercial copying results in no provable actual harm to the copyright harm holder;" he seems to be relying on the tenet of American law that states everyone is "innocent until proven guilty" and the lack of evidence showing that P2P restricts record sales.
In US federal law, a successful fair use defence depend on satisfying four factors, which the Stanford University website states as following:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market
In order to better tilt the odds towards his client's favour, Nesson wants the jury to take other factors into account too, such as: "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."
Experts in copyright law are sceptical Nesson can win the case on fair use grounds. Lawyer Lawrence Lessig (a tongue-twister if there ever was one) wrote him an email saying that "of course [Tenenbaum's conduct] was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn't."
So what about in Blighty? In the UK, the equivalent of "fair use" in copyright law is "fair dealing" - and you'd have almost no chance of basing a successful defence for file-sharing around it. Here's a couple of excerpts from the media law bible, McNae's Essential Law for Journalists:
The courts continue to use, as a test ... the criteria of whether the use competes commercially with that of the copyright owner and whether the amount and importance of the extracts are such as to negative fair dealing.
If the copyright work is obtained by unfair means this may be outside the scope of fair dealing.
P2P networks might not be in financial competition with record companies, but they essentially do compete commercially - as does a company that offers a service for free, taking business from elsewhere. While sharing a small section of a song - for example, a twenty second clip - could constitute fair dealing, sharing a whole song or album would not (the "amount and importance" of the material being too great). And if the track itself was obtained through file-sharing, and that was understood to be "unfair means" by a judge, then future sharing of the track itself would not be covered in the first place.
If Nesson and Tenenbaum do win the case, it would be a landmark precedent that would - in the United States at least - legalise P2P usage and file-sharing. Proceedings will start in Massachusetts federal court in the summer.
[ ars technica ]