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

from the not-a-good-idea dept

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.

Filed Under: fair use, tenenbaum

Court Rejects Plan To Broadcast Tenenbaum Trial

from the no-surprise,-but-disappointing dept

This doesn't come as much of a surprise, given earlier precedents saying that broadcasting a trial wasn't allowed, but an appeals court has officially told the district court in the Tenenbaum trial that it cannot webcast live from the courtroom. This is somewhat unfortunate, though, a bit of a sideshow issue. And, given the oddities involved in the lawsuit up until now (from all parties involved in the lawsuit), it's not clear how useful webcasting the courtroom proceedings would have been. Still, it does seem rather silly to limit the ability to webcast from a courtroom, and the RIAA's assertion that it would be a bad thing because the content would be "readily subject to editing and manipulation" simply makes no sense at all. That's true of any content. But do we see regular "manipulation and editing" of public appearances made by RIAA spokespeople? No, of course not.

Filed Under: tenenbaum, webcast
Companies: riaa

File Sharing, Damages And The Constitution...

from the getting-into-the-legal-weeds dept

Doug Lichtman is a well known intellectual property law professor who is a fairly big supporter of the copyright system. He's reached out to us, because of a podcast he recently recorded discussing the Joel Tenenbaum lawsuit. To be honest, I'd pretty much stopped covering anything to do with that lawsuit, because over the last couple of months, it's turned into something of a circus side-show, with both sides running around and making decisions as if they've never actually been in a court of law before. Even the judge has been making mistakes.

However, Lichtman specifically was hoping for the perspective of folks around here on the podcast, because (as he noted in his email), most of his listeners tend to be strongly pro-copyright, and he was hoping to at least find out what those of us less sure of the benefits of copyright think. To be honest, after listening to the podcast twice, it may be a bit too down in the legal weeds for many readers here -- though, if you really are interested in the legal specifics, have a listen. The first part involves Lichtman talking to Charles Nesson himself about the case, followed by three "legal experts" and then a guy from the RIAA who seems to honestly believe that the RIAA's lawsuit strategy was a success because it taught more people that file sharing was illegal. This is wrong on many different levels, since it clearly didn't impact user behavior, and has created other problems, such as the false belief in some that all file sharing is illegal (even of authorized content) and has framed the RIAA as being anti-consumer, making it that much harder for the major record labels to eventually make the shift in business models that are necessary to succeed these days.

The overall "conclusion" that Lichtman comes to is that Nesson and Tenenbaum are likely to lose the case, as precedent suggests that courts will likely find the statutory damages in the copyright act to be within the range of being constitutional. I actually agree that this is the likely outcome, though I find it, and the reasoning behind it, quite troubling. I also hope that, when (if) the case really goes to trial, Nesson has worked up a better argument than he gave on the podcast. While he does raise some good points, a lot of it feels like he only has a superficial understanding of both what's happening and the law itself. When really pressed on legal issues by Lichtman, he resorted to an emotional argument ("it's just a kid clicking on links!") which hardly is legally compelling.

However, in listening to the "experts," it sounds like it would be possible to make a more compelling case against the statutory rates by pointing out some rather simple facts: file sharing, in and of itself, creates no damage for artists -- and thus, the statutory rates have nothing to do with being a "remedy," but have everything to do with being punitive, which would make it a criminal issue, rather than a civil one.

Now, I can hear the copyright supporters (including Lichtman) shouting that it's ridiculous to claim that file sharing creates no damages for the artists -- but that's not what I said. I said, file sharing in and of itself creates no damage. And that's easily proven: just point to the increasingly large number of artists who have embraced file sharing on purpose and who have found that it's helped them earn more money. Then, what you realize is that file sharing combined with a bad business model may create damages, but those damages may be alleviated by putting in place a better business model (again, pointing to evidence of artists who have done exactly that). At that point, the "damages" have gone away. The fault is almost entirely on the part of the artist who picked a bad business model, and then did nothing to alleviate the problem when it became clear that the market was going in a different direction.

In that case, there's no actual evidence of damages, and it's difficult to see the constitutionality of charging someone $750, let alone $150,000, when there's no actual evidence of damages -- and the only actual "damage" may have been caused by the artist themselves by picking a bad business model.

Part of my problem with all of these discussions is that copyright supporters seem to automatically assume that file sharing must be bad -- but there's plenty of evidence to counter that, with artists' wide embrace of it (successfully in many cases) being exhibit A. If file sharing was really so damaging, there would be no such examples. But we see more and more every day. So it's not file sharing that's the problem. The real problem is a bad business model combined with file sharing. And it's rather ridiculous to fine Joel Tenenbaum (or anyone) because some record labels and musicians chose a bad business model.

Filed Under: charles nesson, constitutionality, doug lichtman, lawsuit, tenenbaum

RIAA Explanation For Not Wanting Court Broadcast: Those Geeks Might Remix It

from the context-is-king dept

We've already discussed how badly the RIAA does not want the pretrial hearings in the Tenenbaum case to be broadcast -- as was requested by Tenenbaum's lawyers, and approved by the judge in the case. However, the reasoning from the RIAA is pretty laughable. Apparently, it's afraid that (gasp!) some of these tech savvy propaganda-ists out there might remix the video and "manipulate" it to take RIAA arguments out of context. Of course, in saying so, the RIAA has now pretty much guaranteed that's what will happen, but... that still shouldn't matter. We know the RIAA is against the whole concept of remixing, but we thought that was a copyright issue, not one where they actually think that such remixes are universally taken as fact. I wonder if the folks at the RIAA think that things like The Daily Show and The Colbert Report are serious news programs rather than satire...

Filed Under: broadcast, tenenbaum
Companies: riaa

All-Star Witness List In Lawsuit Over Constitutionality Of RIAA Lawsuits

from the that's-quite-a-witness-list dept

Last month we had mentioned how Harvard Law professor Charles Nesson was taking on the RIAA's strategy of suing music uploaders by claiming that the laws the RIAA was relying on were unconstitutional. That case ("the Tenenbaum case") started moving forward this week, and the Associated Press had a story at the beginning of the week, which about fifty people submitted (with some angrily wondering why we hadn't written about it). We didn't write about it because it was basically the same story we had covered in October.

However, there is some interesting news in the case, as Ray Beckerman has posted the proposed witness list put forth by Tenenbaum's legal team and it is quite the star-studded list. It's becoming quite clear (if it wasn't already) that this is a case where a bunch of different folks in the "copyfighting" realm are converging to confront the RIAA's legal strategy. The list includes:

• John Perry Barlow (former songwriter for The Grateful Dead, founder of the EFF, and well known digital thinker)
• Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
• Prof. Lawrence Lessig (needs no introduction, I imagine, for folks around here)
• Matthew Oppenheim (who has a somewhat murky relationship with the RIAA, at times representing the RIAA, and at other times insisting he does not represent the RIAA)
• Prof. Terry Fisher (a director of Harvard's Berkman Center and author of Promises to Keep, an early book looking at how the internet was changing the entertainment industry, and how it's business models need to change)
• Prof. Wendy Seltzer (well known copyfighter, law professor, former staff attorney at the EFF and founder of the Chilling Effects site)
• Prof. John Palfrey (Harvard law professor, co-director of the Berkman Center, author of Born Digital)
• Prof. Jonathan Zittrain (Harvard and Oxford law professor, co-director of the Berkman Center, author of The Future of the Internet)
• Andrew Grant (former antipiracy specialist at DRM company Macrovision)

That is quite the all-star list. This case is going to be a fun one to watch.

Filed Under: andrew grant, charles nesson, john palfrey, john pouwelse, jonathan zittrain, larry lessig, matthew oppenheim, tenenbaum, terry fisher, wendy seltzer
Companies: riaa