Harvard law professor Charles Nesson is defending Joel
Tenenbaum, a 25-year-old American charged by record label Sony BMG
and others with copyright infringement over his alleged downloading
of music from peer-to-peer (P2P) file-sharing networks.
Nesson and a team of Harvard law students are working on
Tenenbaum's defence. Such a defence is relatively unusual since
many people accused by labels and the industry body the Recording
Industry Association of America (RIAA) pay thousands of dollars on
demand to settle potential suits.
In filings to the US District Court for the District of
Massachusetts Nesson says that in order for the labels to be
successful they must prove that Tenenbaum's use of the material was
unfair.
"Fairness borders copyright infringement," said Nesson in his
submission. Proving that the defendant infringed entails proving
that his copying was not fair … the issue of the fairness of the
defendant's use is integral to the decision the jury must make as
to whether the defendant's actions were infringements."
Nesson said that the concept of 'fairness' was flexible.
"Fairness is a standard, not a rule. Fairness is not legally
defined as a rule. No simple definition of fair use can be
fashioned, no bright line test exists," he said.
Nesson said that in the US fair use emerged in the 19th century
through court rulings and became a clearer right throughout the
20th century, until it was codified in a 1976 overhaul of copyright
law.
He said that that 1976 law laid out four factors which will
determine whether a fair use exemption applies. These are: the
purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes; the
nature of the copyrighted work; the amount and substantiality of
the portion used in relation to the copyrighted work as a whole;
and the effect of the use upon the potential market for or value of
the copyrighted work.
"Defendant Tenenbaum expects and plans to offer the jury
evidence relating to each one of these four factors, just as they
are articulated in the statute, with the jury to decide their
meaning as they apply to the facts of his particular case," wrote
Nesson.
Nesson said that other factors would also be relevant to
Tenenbaum's case of fair use, including the fact that the music
industry has not adapted to the internet.
"Defendant Tenenbaum expects and plans as well to offer the jury
evidence relating other factors that bear on the jury’s assessment
of whether the defendant's actions in their context were unfair.
Such will include the copyright holder’s knowledge of and
assumption of risk when it published the copyrighted work that the
work would be ripped and shared on p2p networks; the copyright
holder's delay in providing alternatives to p2p downloading, thus
creating an environment in which even the RIAA concluded that suits
against p2p downloaders would be unfair until such alternatives
existed; the defendant's history of buying music and of copying
music from one format to another; the availability and the
defendant’s knowledge and understanding of the availability at the
time of his alleged actions of alternatives to p2p downloading; the
defendant’s actual use of the copyrighted works; and the messages
of the allegedly downloaded songs and artists."
In a separate filing in response to the US Department of Justice
in relation to the case, Nesson argued that statutory copyright
damages, which can run to thousands of dollars per song downloaded,
should not apply in non-commercial cases.
Because actual damages are zero, he argued, the statutory
damages should also be zero.
"It would be a bizarre statute indeed that offered two
completely unrelated remedies within the same section: we imagine,
for example, that the Court would be baffled by a statute that
granted a plaintiff the choice between two remedies, one of which
granted actual damages and lost profits, and the other of which
granted plaintiffs the right to drive a flock of sheep across
federal property on the third day of each month," he said.
"By including the remedies side by side in the Copyright Act,
there is a strong textual suggestion that they are to a certain
extent comparable to one another; that in some way they provide the
same remedy for plaintiffs."
"Interpreting the Copyright Act so that its statutory damage
provision does not apply to noncommercial users is more than
reasonable," he said. "It is not only reasonable to interpret the
Copyright Act so as to apply its statutory damage provisions only
to commercial infringers, it is constitutionally compelled."
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