Commentary

Harvard Law Prof: File Sharing Doesn't Violate Copyright

by Wendy Davis , Staff Writer, July 28, 2009

In a bold and controversial strategy, the lawyer for accused file-sharer Joel Tenenbaum is urging the jury to reject the record industry's basic premise that music fans who share files online infringe on copyright.

At the trial, which got underway this week in federal court in Boston, Tenenbaum's lawyer is admitting that his client shared tracks on Kazaa but asking the jury to find that doing so didn't infringe on copyright. It's somewhat like arguing "guilty with an explanation." That is, Tenenbaum is hoping to persuade the jury that he didn't do anything wrong, even if he did violate the letter of the copyright law.

That type of jury "nullification" is rare, but not unprecedented. It's one reason why going to trial is always a roll of the dice.

The presiding judge, Nancy Gertner, said this week that she won't allow Tenenbaum's lawyer, Harvard Law School professor Charles Nesson, to present evidence on the legal doctrine of "fair use," which is a defense to copyright infringement. But concepts of fair use will inevitably come up in trial given that Nesson's basic argument is that Tenenbaum's sharing of music was legitimate, regardless of the legal meaning of "fair use."

The concepts will also come up if the jury finds that Tenenbaum infringed on copyright and then assesses damages -- which could range from $750 to $150,000 per track. One of the factors that goes into "fair use" is whether a particular use of copyrighted material hurts the market for it. If distributing files online stimulates buyer demand, then it's possible that doing so didn't hurt the commercial market for music. Certainly some groups -- Radiohead and Nine Inch Nails, for two -- saw huge sales after making tracks available online.

At the same time, it's no secret that record labels have seen sales shrink in the last 10 years, thanks to the availability of free music on peer-to-peer sites. In response, the Recording Industry Association of America has filed around 30,000 lawsuits against non-commercial users. In many cases, the RIAA has extracted settlements ranging from $3,000 to $5,000.

Meantime, there's been no indication that the campaign stemmed file-sharing. The record labels themselves backed away from it last December, when the RIAA announced it would stop filing new lawsuits against non-commercial file-sharers.

Only one other alleged file-sharer has had a jury trial: Jammie Thomas-Rasset. She denied sharing tracks and said her ex-boyfriend or children must have been responsible for any files tied to her IP address. That argument didn't play well with the jury, which not only found that she had infringed copyright but hit her with damages of $80,000 per track, of $1.92 million for 24 songs.

commentary, content issues, copyright, legal

3 comments about "Harvard Law Prof: File Sharing Doesn't Violate Copyright".

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Stephen Dennison from Level 3 Communications, Inc., July 28, 2009 at 6:35 p.m.
I'm not sure what the practical implications are of an individual getting hit for a 1.92 million dollar settlement (force the woman into bankruptcy? Nice.), but I do knows that my mom had a similar situation in her 70's where someone in the family installed Kazaa or Limewire to get a few tunes on her broadband, and forgot to delete them ... the file sharing program started by default at each reboot, and eventually, she got the dreaded letter from her ISP that she had been busted for sharing Marilyn Manson and Staind music.
Only when Juries realize that these individual law suits for preposterous amounts (for $1.92 million, I should OWN the 24 bands whose trachs she was sharing) are simply ways for the RIAA to extract the most publicity out of their litigation-buck at the EXTREME expense of individuals that may or may not be guilty, will the insanity cease.
They're suing the wrong people, the ones that got no financial gain from the downloads ... Make the RIAA figure out who DOWNLOADED the tracks, and have them initiate a bunch of micro-suits for $0.99 for every track the person stole ... now THOSE suits would cost them a lot more, but they could get real $5 - $15K settlements for the real "I might as well have it" abusers, which should have a measurable effect on the AMOUNT of piracy someone is willing to risk for tracks they really don't care about to begin with.
But that would take a thinking population on those juries ... so there's no real risk of it happening any time soon.
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Walt Boyes from Putman Media Inc., July 28, 2009 at 8:58 p.m.

First, I want to note that you made a statement which is not proven, and likely not true. You said, "At the same time, it's no secret that record labels have seen sales shrink in the last 10 years, thanks to the availability of free music on peer-to-peer sites." No proof has ever been offered that this is correct. Fact is, it is just as likely that sales have shrunk because of the availability of single track sales on a multiplicity of legal outlets like iTunes and Rhapsody.

Second, I find it very hard to understand why the judge refused to permit the defendant's counsel to discuss the concept of "fair use" with the jury. Granted, RIAA insists that there is no such thing as "fair use" even to the listing of song titles and partial lyrics on websites.

Too much evidence, both in music and book sales online exists to prove that DRM and lawsuits have done nothing but slow the adoption of electronic distribution. People, especially artists, make more money this way. NIN and Radiohead are FAR from the only artists to discover this. Just ask Janis Ian. But stand fairly far away. Janis is fairly passionate about the subject.

Paula Lynn from Who Else Unlimited, July 28, 2009 at 9:28 p.m.

Blood from a rock comes to mind @ $1.92 million.