Claiming That Downloading Is Fair Use Seems Destined To Fail... Badly

from the not-a-good-idea dept

Tue, May 19th 2009 5:18pm — Mike Masnick

A bunch of folks have been sending in the story about Charles Nesson's plans in the Tenenbaum case to try a "fair use" defense, claiming that even if Tenenbaum shared content, it was fair use. There didn't seem to be much to comment on it, as this argument was ably dismantled last month by Nesson's own expert witness list. However, since he's going forward with it, I'll add my voice to the chorus of voices who all point out that this seems extremely unlikely to succeed. Even if you believe file sharing should be fair use, it's hard to see how the law would agree, as is currently written (and given other court decisions). In fact, if you want to argue that file sharing isn't a violation of copyright law, I think Nesson would be better off following Andrew Bridge's assertion that if you read copyright law literally, it only applies to material objects, not digital ones (seriously, go read the post to get the details). Unfortunately, again, the courts have traditionally ignored that argument entirely. The original claims by Nesson for Tenenbaum, about the unconstitutionality of the statutory fines, was an interesting argument that seemed to at least have some basis in law (though, even then, the chances of winning seemed slim). To argue that file sharing somehow is fair use just seems like an incredibly unlikely position to win, and pushing that argument will likely create a ruling that sets a dangerous precedent around fair use.

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Filed Under: fair use, tenenbaum

22 Comments

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Anonymous Coward, 19 May 2009 @ 5:30pm

Could be he's just screwing with 'em.
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Anonymous Coward, 19 May 2009 @ 5:59pm

this is the end game of file trading. soon enough it will go back underground because one solid judgement and the riaa will be up everyones butt.
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Mechwarrior, 19 May 2009 @ 6:03pm

What was that phrase? "Those who can't, teach"?
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Eric Goldman (profile), 19 May 2009 @ 6:03pm

We already have that dangerous precedent!
See BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005), http://caselaw.lp.findlaw.com/data2/circs/7th/051314p.pdf. Eric.
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Matt, 19 May 2009 @ 6:10pm

bleh
tenanbaum is a bad case, what I hear from other lawyers is that people who are law professors do not make good lawyers. It sounded awesome at start but now it's just a horribly bad idea in general.

The guy has made bumbles in court, although wish he was better.
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Anonymous Coward, 19 May 2009 @ 6:17pm

Here's what we have to look forward to
http://arstechnica.com/tech-policy/news/2009/05/next-up-for-france-police-keyloggers-and-web-cen sorship.ars
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YouAreWrong, 19 May 2009 @ 6:19pm

there are cases where
downloading _CAN_ arguably constitute fair use. for example, if you already pay for a cable subscription, downloading tv or movies that are in your subscription should be fair use. since you've already paid for this stuff, and can play it on demand without commercials (via fully legal DVRs), downloading the file certainly doesn't injure the commercial value of the video because you've already paid for it.

what's probably going to happen here is that Nesson is going to argue that filesharing doesn't cause any injury whatsoever -- in fact, for the past few years the RIAA and MPAA have both either reported record profits, or their losses weren't even fractionally proportional to any other industries in our dwindling economy. in other words, saying that filesharing injures the commercial value is simply not supported by the facts.
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Anonymous Coward, 19 May 2009 @ 6:31pm

Digital Millennium Copyright Act?
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Anonymous Coward, 19 May 2009 @ 6:36pm

Master Recordings
Under a promotional license, which is for a limited time, provides almost unlimited use of the song.

Usually these licenses are 270 days in length and handed out to whomever asks for them. However, this can vary from company to company, so be cognizant with that. Why not get cozy with the labels, and why not apply for a few promotional licenses yourself?

Do note: after the promotional time elapses, you do need to apply for the proper licenses or purchase proper rights that pertain to your usage. But you'll have access to the master recordings should you request.
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Anonymous Coward, 19 May 2009 @ 6:46pm

I thought all the RIAA action was about uploading, not downloading.
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Anonymous Coward, 19 May 2009 @ 7:18pm

One would think that when even Mr. Lessig backs away from a fair use argument that perhaps Mr. Nesson would realize that the argument is not going to find a receptive audience.

If Mr. Nesson persists (which I truly hope he does not), the phrase "Damn the torpedoes, full speed ahead" will likely be rephrased as "Damn the torpedoes, full speed ahead. 'BOOM'. Ooops..."
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Iron Chef, 19 May 2009 @ 7:49pm

Re:
One would think that when even Mr. Lessig backs away from a fair use argument that perhaps Mr. Nesson would realize that the argument is not going to find a receptive audience.

I would think that the best solution doesn't involve the courts, and to incents those who license. Lessig will come, soon.. Very Soon. I should reach out to him and figure out if he finally moved to Boston or is still in The Bay Area. Heh.

Oh, I canceled the phone number provided in a previous post, so don't call that. I'll set something else up.

It's http://www.lessig.org if you're curious.
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Tony, 19 May 2009 @ 8:07pm

What if?
Since the courts haven't been very clear on what "fair use" really means, isn't it entirely possible that he's going to make the fair use claim and, expecting to lose, appeal it, hoping to get to the Supreme Court and force a definition of the term.

Risky, yes; but if he has a good strategy, and a good argument (that he hasn't disclosed), he may be confident that the appellate process will bring not only a win for his client, but will stymie the RIAA and MPAA for good.

Just a thought...
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Tony, 19 May 2009 @ 8:18pm

One more thing...
Further, as someone pointed out above, law professors don't necessarily make good trial lawyers; but they make superlative appellate attorneys. By getting the case to the circuit and supreme court level, Mr. Nesson would effectively be on "home turf". Supreme Court justices are more "legal scholars" than their lower court counterparts. It just might make sense to go that route!
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Techsupoort, 20 May 2009 @ 12:08am

RE:
The original claims by Nesson for Tenenbaum, about the unconstitutionality of the statutory fines, was an interesting argument that seemed to at least have some basis in law.
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hfly, 20 May 2009 @ 12:33am

Although somewhat different from the actual meat of the article, my comment is more in reference to the title. Why couldn't downloading be fair use? I mean if I were caught by some bs record/movie company, why couldn't I just go out and buy the cd/dvd [of course not letting that fact be known] and then just claim that I was using file-sharing system in order to get my 'backup copy'?
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JP_Fife, 20 May 2009 @ 3:31am

These are the defenders of the downtrodden people oppressed by the big music companies? Boy is everyone going to get dicked.
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Anonymous Coward, 20 May 2009 @ 5:47am

"Even if you believe file sharing should be fair use, it's hard to see how the law would agree, as is currently written (and given other court decisions). In fact, if you want to argue that file sharing isn't a violation of copyright law,"

Given current world legal system this statement is so far beyond the ridiculous and silly that it is almost impossible to comprehend the intended meaning.

Reference is made to which law in which country?

Are we discussing UK law, US law, French law, German law, EU law, Canadian law, Mexican law, Chinese (mainland) law, Japanease law, et.?

See the problem is that all of these countries have internet service too and that I can and do access their English language web pages on a daily bases.

From this one can easy imagine a situation where a song sung in English by a Canadian written in Mexico by a Mexican living in Mexico who just left East Los Angles is stored on a server in Japan downloaded by a Englishman in France by an internet connection passing through the US.

So would some one please explain to me what law where and by whom we are talking about.
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CleverName, 20 May 2009 @ 6:18am

Have to state the obvious
Legality depends upon what is being shared.

File sharing is not illegal. If it were, then all of you posting here would be in violation of the law.

Those who throw out blanket statements about filesharing usually intend them to be directed at copyright material only. This does not excuse the lack of detail in their accusation.
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:Lobo Santo, 20 May 2009 @ 6:25am

Re: What if?
I hope so.
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bob, 20 May 2009 @ 7:06am

Jury Nullification
Jury nullification, the more people know about it the more it will happen.
From the Magna Carta to today, Jury Nullification is the way
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Anonymous Coward, 20 May 2009 @ 8:06am

Re:
>

All meaningless babel. served from where? downloaded where? End. englishman in france is subject to french law. who wrote the song is immaterial. where it was served from is important. passing through the us isnt important if we assume absolute net neutrality and safe harbor.

nice long story to prove that you dont get it.
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