The Nesson Lesson on Fairness

Jesse Brown of Search Engine had some excellent questions for Prof. Charlie Nesson, who is defending Joel Tenenbaum in Boston as we speak against copyright infringement claims that he downloaded and shared 7 (or actually 30, as Prof. Nesson has recently realized) songs.

Jesse had perfectly clear and well though out questions about how the American doctrine of fair use could encompass Joel's activities. Nesson ducked the question for a long time and then finally answered by attacking record industry practices and putting the issue as one of "fairness". He said, in effect, that the statute is simply a starting point to determine "fairness" and that there can be other factors beyond the famous four listed in 17 USC 107.

That may be right, but presumably, this interview was taped before Judge Gertner unsurprisingly threw out the fair use defence in this case on a partial summary judgment basis because Nesson had led no evidence that could possibly sustain it.

Judge Gertner states - with a full opinion to follow - that:

He [Tenebaum] proposes a fair use defense so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle: His rule would shield from liability any person who downloaded.

After mentioning numerous possible arguments that might succeed on the fair use question, Judge Gertner rules:

The only fair use factor on which the Defendant raises a serious factual challenge is the effect of his file-sharing on the potential market for or value of the copyrighted works, see 17 U.S.C. 107(4), in which he argues that file-sharing has not diminished the record companies' revenues nor curtailed overall artistic creation. But here again, Tenenbaum has put no facts into evidence on which the Court could rely; his opposition briefs are not accompanied by any affidavit, expert report, deposition testimony,or other evidence of the kind described by Rule 56(e). Even more, the Court is bound to look at the market for the specific works identified by Plaintiffs and as to this market, a court must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant... would result in a substantially adverse impact on thepotential market for the original." Campbell v. Acuff-Rose Music, Inc., 510U.S. 569, 590 (1994) (quoting Nimmer ? 13.05[A][4]). Plaintiffs have argued that continuous, high-volume file-sharing -- offering exact duplicates to millions of peer-to-peer users for free -- would negatively affect the market for these copyrighted works. The Defendant has offered no facts to the contrary. While the Court recognizes that not every unauthorized download would represent a lost sale, it seems clear that some portion of paying consumers would shift to free downloads if this activity were deemed a fair use. Based on this finding, the private purpose of this use, the substantiality and lack of transformation, and those additional factors the Court is entitled to consider, the Court holds that Tenenbaum's alleged infringement was not a fair use.

(empahsis added)
See the whole ruling here.

Jesse also asked whether the controversial defence efforts were in the best interests of Joel, who appears now to be almost certainly on the hook for at least $22,500, when he could have settled for a fraction of this amount.

Listen to the excellent interview and to Prof. Nesson's responses.

HK

Predictions for the Tenenbaum Trial

Joelfightsback.com/BostonGlobe.com

The Tenebaum civil trial for downloading and file sharing is set to start in Boston in one week on July 27, 2009. Above, that's Joel and his Harvard student team defenders on the left and their nothing if not controversial and by most accounts either "crazy like a fox" or just plain "crazy" lead counsel, the celebrated Prof. Charles "Charlie" Nesson of Harvard Law School, aka "Billion Dollar Charlie" for his successful role in the real life case against W.R. Grace as depicted in "A Civil Action."

There are four notable sites to track this event. Joel's site is here. Charlie's blog is here. Ray Beckerman's pro defendant blog is here. Ben Sheffner's pro RIAA blog is here.

Essentially, Joel is on the book for up to $4.5 million for the 30 or so songs that the RIAA is claiming for @ up to $150,000 each. That's the potential result based upon statutory minimum damages.

Charlie has conducted a very open and controversial defense, even publishing a bunch of emails from notables such as Lessig, Fisher and others advising that a fair use defense doesn't have a chance.

In my view, the only thing that can be predicted out of all this is as follows, assuming that Joel is an ordinary middle class student and not unusually rich:

• If Joel somehow wins, the RIAA has a big problem.
• If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.
• If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.
• If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

Bankruptcy law in the USA doesn't necessarily discharge judgments for "willful" copyright infringement. See Fred Von Lohmann's analysis here.

But it's hard to imagine even the RIAA members pursuing an ordinary college student or a single mother of two such as Jammie Thomas for the rest of their lives for chunks of their wages or other modest income or assets. But then, who would have thunk that the RIAA would have sued children and dead grandmothers?

The higher the award, the more likely it is that Congress and/or the Supreme Court might get very interested.

Whatever happens, it will be interesting for all who are watching. Whatever else Charlie has done, he has made sure of that much.

BTW, all eyes are on Judge Gertner in the meantime to see how she rules on several outstanding issues, including an order to show cause arising out of some of Charlie's postings on the internet.

HK