Professor Nesson's plan to use a fair use defense in the Tenenbaum/RIAA trial is causing quite a stir. The Harvard Law professor heading up Joel Tenenbaum's defense team seems firmly rooted in his position, believing that file sharing is a fair use. "From my side the path is straight," he said in a serious of tweets discussing ruminating on his point.
Other copyright experts have weighed in on this approach, in part because Nesson has either asked them for their opinions or has asked them to be expert witnesses at the trial. They do not agree that file sharing is fair use. Expert squabbles aside, this Ipper has one question: Why use this defense?
The original, or at least most previously focused on position was that copyright statutory damages are unconstitutional because of their extremely high ratio between value of actual harm and value of punitive damages. What do you gain by pursuing the fair use defense that you don't get by pursuing the statutory damages position?
File Sharing Becomes Legal - and?...
Legal file sharing is the most obvious outcome of a successful free use defense, but it really doesn't do us any good. The music industry is moving towards accepting free file sharing (much to my chagrin). There's the recent deal in China that creates a free legal way for consumers to download music. There's also the Canadian proposal to add an opt-out-able music license into internet payments. And many more proposals and trial runs of different ideas around the world. Yes, the industry is still pushing things like ISP 3-strikes laws, but it's just buying time. The industry has a plan.
So, free legal music is coming. If the fair use defense in the Tenenbaum case succeeds, we just get the same outcome (in a less valuable way - more later) a bit early. Maybe. With the slow pace of trials, the court might not even have a chance rule on the issue until the matter is completely moot.
The Statutory Damages Claim - Real Benefits
The Copyright Act's statutory damages apply to all infringement, not just file sharing. So, if the level of statutory damages is found to be unconstitutional, the change in the law affects anyone accused of copyright infringement. This includes people who post YouTube videos, musicians who use sampling, and Lessig's poster-child: remix artists.
If a court finds the copyright infringement statutory damages to be unconstitutional, we get to make the law fair again. If a court decides file sharing is fair use, all we get is an even murkier definition of fair use.