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Harvard professor says downloading is 'fair use'

Downloading music without the permission of the copyright holder should qualify for copyright laws' exemptions for 'fair use', a Harvard academic has said. Partial responsibility lies with the music industry itself for failing to adapt, he said.19 May 2009

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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