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Harvard Law's Nesson Says P2P Is "Fair Use"

timothy posted more than 5 years ago | from the hopefully-mix-tapes-are-a-corollary dept.

The Courts 393

eldavojohn writes "Ars has been covering the story of Charlie Nesson (alias 'Billion Dollar Charlie') of Harvard Law who's tangoing with the RIAA in court. His approach has been revealed in e-mails on his blog and has confused everyone from Lawrence Lessig to the EFF. His argument is simple: file-sharing is legal as it is protected by fair use. I dare say that even the most avid file-sharers among us would be a bit skeptical of this line of reasoning."

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Pipe dream (5, Insightful)

JJNess (1238668) | more than 5 years ago | (#27436875)

As much as I'd like to agree with him, I think someone's reaching just a little too far...

Re:Pipe dream (4, Informative)

linhares (1241614) | more than 5 years ago | (#27437055)

He's going to try a jury case, and if he gets one, it should be easy to stamp on the jurors that US$150000,00 PER SONG is a bit overwhelming. Since the labels know that the jurors might agree with that, I think that the labels could drop the case altogether. From Ars, Assuming the jury buys this argument, Nesson can then tap into a basic sense of fairness to claim that a federal trial with the potential of $150,000 in damages per song is unfair in a broad sense, especially when Joel was (allegedly) a noncommercial P2P user back in 2003, when rightsholders were still dragging their feet in "licensing commercial alternatives for kids to buy single songs in digital downloads. [arstechnica.com] .

In related news, his blog [harvard.edu] is complete utter nonsense.

Re:Pipe dream (0)

Anonymous Coward | more than 5 years ago | (#27437461)

In related news, his blog [harvard.edu] is complete utter nonsense.

He has chosen a preposterous writing style for that post. But what he says makes sense. Read it again.

Re:Pipe dream (1, Funny)

Chyeld (713439) | more than 5 years ago | (#27437625)

Are you sure he just hasn't gone for the http://en.wikipedia.org/wiki/Chewbacca_defense [slashdot.org]
>Chewbacca Defense?

Re:Pipe dream (2, Funny)

Chyeld (713439) | more than 5 years ago | (#27437671)

Dear lord, I have no idea how I managed to mangle that link that badly.

The Chewbacca Defense [wikipedia.org]

Re:Pipe dream (5, Informative)

severoon (536737) | more than 5 years ago | (#27437751)

The defn of fair use has nothing to do with how the content is conveyed. It has to do with what content is conveyed and the context in which it is used.

Re:Pipe dream (1)

linzeal (197905) | more than 5 years ago | (#27437069)

You may not be too far off this guy is defending the founder of NORML against possession. However, it should be noted that he does represent a populist sentiment in regards to the sharing of files through P2P programs and if he were to be able to attempt to show the futility in the RIAA's attempt at reifying every possible rendition of their product in any media for any use as limited they would be forced to define more explicitly what exactly the fair use doctrine means in an age with terabyte drives costing 100 bucks and the Mp3s that would be needed to fill said drive worth millions according to the RIAA.

Re:Pipe dream (5, Interesting)

Idiomatick (976696) | more than 5 years ago | (#27437293)

At 150,000$ per mp3 it would cost $28,597,527,272.73 to fill the drive. Or around 3 times the GDP(yearly) of Jamaica. Oh and with a 45$/mnth connection you can download that every two days.
So... with 150$ and a month you can steal 460billion dollars worth of mp3s. Or the yearly gdp of Sweden.

(I totally get the RIAA now, really big numbers are fun!)

Re:Pipe dream (1)

Nefarious Wheel (628136) | more than 5 years ago | (#27437359)

So... with 150$ and a month you can steal 460billion dollars worth of mp3s. Or the yearly gdp of Sweden.

(I totally get the RIAA now, really big numbers are fun!)

(gasp) Oh dear gods, for a mod point just now...

Re:Pipe dream (1)

apoc.famine (621563) | more than 5 years ago | (#27437587)

Thank you. That is now my sig on another forum, for at least a little while.
 
Very nice way to show how RIDICULOUS the monetary value placed on electronic goods is. Thank you once again.

Re:Pipe dream (2, Insightful)

just_another_sean (919159) | more than 5 years ago | (#27437541)

You may not be too far off this guy is defending the founder of NORML against possession.

Yeah, so? What's your problem with NORML [norml.org] ?
I would argue that the only relationship between the RIAA's activities concerning file sharing and our
government's policies on marijuana are the shear idiocy of both. Oh, and I guess this lawyer.

Finding Easter Eggs in the Legal Code (1)

SterlingSylver (1122973) | more than 5 years ago | (#27437077)

Honestly, this just sounds like he's torturing the concept of "fair use" until it suits his purposes. If I look cross-eyed at the tax code for long enough, I wonder if I'll find a way to have the government give me millions of dollars. Or maybe I'll just see a 3D sailboat.

Re:Finding Easter Eggs in the Legal Code (4, Informative)

the_womble (580291) | more than 5 years ago | (#27437171)

It does, however, highlight the unfairness of a law that makes do distinction between commercial and non-commercial breaches of copyright.

Re:Finding Easter Eggs in the Legal Code (4, Insightful)

poot_rootbeer (188613) | more than 5 years ago | (#27437349)

It does, however, highlight the unfairness of a law that makes do distinction between commercial and non-commercial breaches of copyright.

The damages (as they are) to the rightful copyright holder are identical whether the violator made a profit off the violation or not.

Re:Finding Easter Eggs in the Legal Code (0, Troll)

JesseMcDonald (536341) | more than 5 years ago | (#27437479)

Exactly. There are no damages in either case, and copyright is wrong whether it's preventing commercial or non-commercial use.

Re:Finding Easter Eggs in the Legal Code (5, Insightful)

czaby (93380) | more than 5 years ago | (#27437639)

If the violator made profit, that could have went to the copyright holder. So there is a potential loss.

On the other hand, if there was no profit, it is not missing from the copyright holder either.

Re:Finding Easter Eggs in the Legal Code (5, Insightful)

syousef (465911) | more than 5 years ago | (#27437211)

Honestly, this just sounds like he's torturing the concept of "fair use" until it suits his purposes. If I look cross-eyed at the tax code for long enough, I wonder if I'll find a way to have the government give me millions of dollars.

Only if you're running a major bank or large manufacturing corporation into the ground.

Re:Finding Easter Eggs in the Legal Code (1)

Plutonite (999141) | more than 5 years ago | (#27437355)

Or maybe I'll just see a 3D sailboat.

Hang on there a sec. The minute you see that sailboat you could be violating Fair Use policies of the people who designed the tax law to look like a 3D Sailboat from a certain angle. Sure, you didn't get the memo, but you are a culprit, and you deserve civil court, and the loss of your reputation, and your money, and your time.

But you are right, he might be stretching it.

Re:Finding Easter Eggs in the Legal Code (0)

Anonymous Coward | more than 5 years ago | (#27437505)

Well turn about it fair play right?

If the RIAA can try to collect their inflated charges with a straight face and call it justice, why can't we claim downloading is fair use?

Re:Finding Easter Eggs in the Legal Code (1)

Qzukk (229616) | more than 5 years ago | (#27437609)

Honestly, this just sounds like he's torturing the concept of "fair use" until it suits his purposes

The problem is that the legal definition of "fair use" is basically handwaving and "I know it when I see it". (Much like obscenity and other laws we're expected to use psychic powers to live by.)

If he waves his hands just right, he'll cast "get off scot free". Of course, any error will unleash the unspeakable terrors of the damned upon us all.

Re:Pipe dream (5, Insightful)

alvinrod (889928) | more than 5 years ago | (#27437209)

I'd consider it fair use for anyone who has a right to a digital copy of the file, to download that file regardless of who uploads that file to them.

If I've purchased the media on a physical device such as a CD, DVD, etc. or a digital copy of it from some media store that has been licensed to sell the media, I feel as though I have a right to digital copies so that I can make a backup copy in the event that the physical media is damaged an unable to playback or to ensure that the media can be used on different devices because DRM on the file would prevent me doing so otherwise.

There are probably a few finer points to my philosophy that could stand some fleshing out (e.g. does purchasing a DVD movie entitle me to a digital Blu-Ray/HDDVD copy with higher quality?) but it's probably not worth going into.

If we can accept that as fair use, then by extension P2P file sharing should only be illegal in the event that a person isn't entitled to own a digital copy of some work. It's not really much of a reach if you're willing to accept that my rights as a consumer trump any corporations rights to require me to purchase the same media over and over again and prevent me from enjoying in the way I want to do so.

Even though some people are going to abuse P2P systems and obtain material that they haven't rightfully paid for, that shouldn't be a reason to remove a system that works well for responsible users.

Re:Pipe dream (0)

Anonymous Coward | more than 5 years ago | (#27437411)

Assuming you live in the United States, the AHRA [wikipedia.org] would disagree with you when it comes to making digital copies of audio.

Analogue copy = fair use,
Digital copy = pay a royalty (often in the form of a n Audio CD-R, or a DAT tape surcharge).

Re:Pipe dream (2, Insightful)

alvinrod (889928) | more than 5 years ago | (#27437601)

If I've bought the CD I consider it well within my rights to make perfect lossless digital copies of the music so that I can put it on an portable music player or on a hard drive attached to a stereo system.

I might not necessary believe myself entitled to a lossless digital copy if I were to purchase a lossy MP3 digital copy of the song from some online music store.

I really don't care what that law says as I believe it's invalid and my consumer rights supersede what some companies, with enough money to lobby idiotic congress critters, decide my rights should be.

Re:Pipe dream (0)

Anonymous Coward | more than 5 years ago | (#27437805)

I really don't care what that law says as I believe it's invalid and my consumer rights supersede what some companies, with enough money to lobby idiotic congress critters, decide my rights should be.

That's true, right up to the exact instant where you are served with a Federal lawsuit that costs tens of thousands of dollars to defend yourself against. At that instant, and for months and months after that instant, you will care; you will care a lot.

Re:Pipe dream (1)

Korin43 (881732) | more than 5 years ago | (#27437563)

I think if you buy the DVD you don't have the right to download a higher quality copy (since you were presumably buying it knowing that you were getting a lower quality version), but if you buy the Blueray version, downloading the DVD copy should be legal since you bought a higher quality version and it would be trivial to create it if you had your original--although I could possibly see an argument that you could only download the DVD version if there isn't a torrent of the Blueray version available.

Re:Pipe dream (1)

MobileTatsu-NJG (946591) | more than 5 years ago | (#27437427)

As much as I'd like to agree with him, I think someone's reaching just a little too far...

I personally cannot decide if he's reaching too far or not until I get an actual number of how much is really 'lost' by piracy. (Funny how internet usage is growing every year but Video game revenue keeps going up and up!)

Re:Pipe dream (1)

Shadow of Eternity (795165) | more than 5 years ago | (#27437573)

If you notice almost every claim about piracy tends to be a claim that because of piracy the increase in profits over the previous was not as large as they expected.

Re:Pipe dream (1)

MobileTatsu-NJG (946591) | more than 5 years ago | (#27437713)

Yep. Makes you wonder why GTA4 was available for download a full week before release, yet it still went on to make half a billion dollars.

Re:Pipe dream (1)

Eggplant62 (120514) | more than 5 years ago | (#27437473)

I dunno about that. How many times daily do you listen to the radio and hear the same songs provided for the simple cost of an occasional commercial interruption? It can be easily argued that the artists and the RIAA have placed their songs out to be shared on public radio, so what's wrong with similar arrangements elsewhere? I share my CD with you and you make copies and share with a friend a song or two on a mix CD. I don't see much difference, only the medium changes from plastic with a bit of tin foil to the tubes and wires of the Internet.

Re:Pipe dream (1)

stms (1132653) | more than 5 years ago | (#27437499)

It should be protected by fair use if you actually own a "legal" copy.

Not a Pipe Dream (0)

Anonymous Coward | more than 5 years ago | (#27437545)

Let me give you an example. I have a TiVo-like recording device attached to my computer. It records TV broadcasts for timeshifting and archival. However, it records them in a non-compressed format. A typical TV broadcast can take 2 gigs of data. So, what I often do is also P2P the same show. I have rights to watch this show and I have a recording of the show. The only thing the P2P network lets me do is save me the time of compressing and manually chopping the same show into parts for archival. Shifting from MPEG2 at 2 gigs to MPEG4 at 600 megs is fair use in the same way that ripping an mp3 from a CD you have rights to listen to is fair use. This is what the P2P network lets me do.

Methinks... (5, Interesting)

AKAImBatman (238306) | more than 5 years ago | (#27436879)

...going to Harvard is not a guarantee of sanity. Just looking at this guy's blog seems to confirm that suspicion. Of course, I wish him the best of luck! If he somehow manages to successfully argue his case, I will be very happy for him. Shocked, but happy.

Re:Methinks... (2)

verbalcontract (909922) | more than 5 years ago | (#27436993)

Yeah, I would have to agree. A quick glance at the blog reveals a marijuana category [harvard.edu] .

...Except three of the four articles aren't about marijuana. They're political poems sent into the blog.

The oldest post does mention marijuana law... in another poem.

Maybe _this_ is the ??? before "Profit"??

Re:Methinks... (1)

alvinrod (889928) | more than 5 years ago | (#27437225)

Maybe they were stoned when they wrote the blog posts?

Re:Methinks... (3, Interesting)

SatanicPuppy (611928) | more than 5 years ago | (#27437029)

It's faintly conceivable that he may be attempting to assert that p2p distribution provides a positive benefit to the copyright holder in the form of increased exposure.

In other words, that P2P is the worlds most efficient viral marketing campaign.

The plus is, p2p is non-commercial, and non-commercial use is usually considered favorably. The minus is, the entire product (which has a monetary value) is being distributed against the express wishes of the copyright holder. That's usually considered a bad thing.

Re:Methinks... (2, Interesting)

AKAImBatman (238306) | more than 5 years ago | (#27437145)

It's faintly conceivable that he may be attempting to assert that p2p distribution provides a positive benefit to the copyright holder in the form of increased exposure.

It's a bit hard to understand exactly what it is he's claiming, since he does not appear to publish any concise treatise of his legal theory. He does appear to claim that the four question test is invalid as he feels that Fair Use is a Common Law construct that supersedes the current precedent for Fair Use.

To which my only response is incredulity. The legal system simply isn't setup in such a way that anyone can come in and claim that the last hundred years of precedent is completely wrong. You'd have to have an incredibly powerful argument to overturn that sort of precedent.

Now supposedly he wants to get a jury trial in hopes of convincing them. To which I'm left scratching my head. Is he counting on jury stupidity? Or insanely good ability to follow convoluted logic? His own students (who are doing most of the work) are extremely wary of this tact and have voiced opinions that they don't think it's going to work.

But as I said, maybe he'll prove me wrong.

(Then again, he might just piss off the judge instead. She didn't seem very happy when he was recording their phone call.)

Re:Methinks... (0)

Anonymous Coward | more than 5 years ago | (#27437369)

He does appear to claim ... that Fair Use is a Common Law construct that supersedes the current precedent for Fair Use. ... The legal system simply isn't setup in such a way that anyone can come in and claim that the last hundred years of precedent is completely wrong.

Especially since Common Law is precedent.* Common Law: [answers.com] "The system of laws originated and developed in England and based on court decisions"

Saying that common law supersedes judicial precedent is like saying that the laws of physics supersedes experimental results. We create the laws of physics to match experimental results, and if the orbit of Mercury doesn't match predictions, it's the current laws of physics that are wrong, not the experimental data.**

* Obligatory IANAL disclaimer.

** Of course, any particular experiment can be in error due to a variety of reasons, just like a single case can be mis-decided. But if *all* of your experiments point in one direction and the laws of physics point in another, reality wins out.

Re:Methinks... (3, Informative)

Nefarious Wheel (628136) | more than 5 years ago | (#27437469)

The minus is, the entire product (which has a monetary value) is being distributed against the express wishes of the copyright holder. That's usually considered a bad thing.

"Making available" isn't distribution. Check the NYCL threads, probable google "beckerman"+"making available"

Re:Methinks... (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#27437697)

"Making available" isn't distribution. Check the NYCL threads, probable google "beckerman"+"making available"

I'll make it easier. Read Capitol v. Thomas [blogspot.com] , Atlantic v. Howell [blogspot.com] , Atlantic v. Brennan [blogspot.com] , and LondonSire v. Does [blogspot.com] .

Re:Methinks... (4, Interesting)

AvitarX (172628) | more than 5 years ago | (#27437539)

I pretty much think this guy is the Jack Thompson we want to win, except if people like that get to win, then Jack Thompson might too, and we lose.

Re:Methinks... (2, Insightful)

Kamokazi (1080091) | more than 5 years ago | (#27437273)

Eh, he's got a shot. Remember, judges are usually lawyers, too. Old ones that may have a hard time understanding technology...something the MAFIAA has capitalized on so far...maybe it can work both ways.

I don't know how happy I would be if it gets decided in his favor, really. This would set an ugly precedent...electroncally shared media would be 'Fair Use'. While the media industry is in major need of reform, I don't feel we should be able to have anything we want for free. It does cost someone money to produce this stuff, after all.

Re:Methinks... (3, Insightful)

AKAImBatman (238306) | more than 5 years ago | (#27437451)

Remember, judges are usually lawyers, too. Old ones that may have a hard time understanding technology...something the MAFIAA has capitalized on so far...maybe it can work both ways.

If every other lawyer in existence is telling him he's nuts, does he really have a solid chance with a judge?

I doubt it. She may listen to his ramblings, she may even humor him a bit. But unless he starts convincing people real quick-like, the judge isn't going to buy it any more than his peers.

Re:Methinks... (1)

mweather (1089505) | more than 5 years ago | (#27437707)

The difference is that the judge will actually listen to his argument, instead of dismissing a caricature of his argument.

Re:Methinks... (0)

Anonymous Coward | more than 5 years ago | (#27437525)

Quite a bit less than the labels would have you believe it is on the "it costs money to produce".

Fair Use (1)

falconwolf (725481) | more than 5 years ago | (#27437605)

This would set an ugly precedent...electroncally shared media would be 'Fair Use'. While the media industry is in major need of reform, I don't feel we should be able to have anything we want for free. It does cost someone money to produce this stuff, after all.

Ah but P2P does have fair uses, not everything shared is copyright infringement.

Falcon

Lessig? (0, Flamebait)

CRCulver (715279) | more than 5 years ago | (#27436907)

has confused everyone from Lawrence Lessig to the EFF

No surprise that Lessig is unhappy with the approach. While lauded on Slashdot, Lessig only wants to restore copyright to the original length instead of abolishing it completely so that our music and film downloading habits are not threatened. I picked up Lessig's latest book Remix [amazon.com] because I thought he was going to sock it to The Man, only to be aghast that he really just wants to replace a fairly monolithic Man with a bunch of smaller Men, and stifle the enormous benefit of filesharing.

Re:Lessig? (5, Insightful)

SatanicPuppy (611928) | more than 5 years ago | (#27437103)

It's reasonable for an artist to expect to be able to profit from their work for a period of time. Protecting that right encourages others to spend the time to create similar work.

The problem is that now that "period of time" is effectively forever, which is bullshit. Those works become a part of the collective culture of a society and it's not right for corporations to continue to hold an intellectual monopoly on those works, long after the original artists have died.

Re:Lessig? (4, Insightful)

garett_spencley (193892) | more than 5 years ago | (#27437485)

This line of thinking confuses the creative genius with the entrepreneur.

The entrepreneur anticipates consumer need and employs capital in production to satisfy that need. He does so for the sake of profit. The creative genius, on the other hand, is rewarded through the process of creating itself.

To dispense with economic theory, I fall into both categories. I run a business, but I'm also a musician and an artist. I've written, recorded, and released an album. I've written stories and painted pictures etc. First of all, I have never met a single musician who writes music with any kind of expectation of profit. Profit is never the motive. I've met and jammed with lots of people who perform for profit, or teach for profit etc. In these cases they see the value of their product or service and will exchange that product or service. However, when they sit down to write a song, they never consider exchange. They write for the sake of writing.

If you ask any of them, myself included, if copyright has ever aided them financially they will think for a moment and then, reluctantly, answer "no". However, that is not to say that they are against copyright. Usually, they like the idea of copyright because morally they dislike the idea of some "greedy capitalist" being able to copy / redistribute and make money using their creation. However, I then ask them whether their status as a musician, and consequently further prospects as a musician and song-writer, would be aided or hindered if others distributed their work for them ?

Then they pause and think.

As a song-writer our biggest challenge is distribution. Getting radio play is nearly impossible for an independent artist. The Internet has helped tremendously, but we still have to labour really hard to get our songs up on all of the music sharing sites. Even then, few people bother to listen to us because there's so much out there that people put up their filters and wait for their friends to recommend new stuff etc.

To go back to the economic argument, if radio stations and Internet start-ups did not have to worry about copyright then web-sites, and DJs and radio stations would play and share much more music than they do now. People probably wouldn't share much more, since most people share copyrighted music in spite of the law, but in theory artists would get much more exposure while having to do less. As a result, the better musicians could conceivably get a fan-base much more easily, doors would open for them and their prospects as a professional musician would widen.

In conclusion, the only people who actually benefit from copyright are the distributors. Musicians are not distributors. It's a hard business to distribute music, and it's much harder thanks to copyright. That's it's whole point. To keep competition out. Disturbingly, competition in the mainstream music industry almost always includes the artists themselves.

Re:Lessig? (1)

FreakWent (627155) | more than 5 years ago | (#27437559)

"It's reasonable for an artist to expect to be able to profit from their work for a period of time."

You need to demonstrate then that it is essential for copyright to exist in order for this to happen.

There's a strong case that simply being first-to-market and being known as the genuine article is enough to make a profit, albeit a smaller one.

Re:Lessig? (1)

JesseMcDonald (536341) | more than 5 years ago | (#27437731)

It's reasonable for an artist to expect to be able to profit from their work for a period of time.

Revenue is the result of offering something that others are willing to buy from you rather than going without or turning to one of your competitors. Profit, in turn, results from finding a way to make that revenue exceed your opportunity costs.

It is not reasonable to expect to profit merely by performing work, without meeting the other requirements. Why should artists be singled out for special treatment?

Copyright is just an incentive system, nothing more. Like all incentive systems it results only in driving over-production of the subsidized goods, at great expense to everyone in terms of actual wealth.

Re:Lessig? (0)

Anonymous Coward | more than 5 years ago | (#27437783)

It's reasonable for an artist to expect to be able to profit from their work for a period of time.

Oh I agree, but at some point reality has to set in, the music industry is trying to sell data when they need to go back to trying to sell music.

Anyone without their head up their ass knows how pathetically easy it is to copy data, even data that people attempt to secure.

The music industry needs to accept that the the Internet is basically nothing more than a public library for ANY type of data.

Libraries didn't kill the publish industry, the Internet won't kill the music industry, if they are willing to adapt to the times.

They need to stop trying to make money for 150 years off of a few days work in a studio and go back to selling their speciality, their music, their performance.

Musicians who want to make a living being musicians they need to go back to preforming their music.

Re:Lessig? (5, Funny)

Zordak (123132) | more than 5 years ago | (#27437113)

While lauded on Slashdot, Lessig only wants to restore copyright to the original length instead of abolishing it completely

Well now, that's just crazy talk. Restoring copyright to a reasonable term? Madness, I say. It's not far down that slippery slope before we get to the point where we give Congress the right to promote the progress of science and useful arts by granting time-limited monopolies to authors and inventors. How far we have fallen from the purity of our true common law roots! We must re-enthrone the true constitutional principle, embodied in the 32nd Amendment, that "Congress shall make no law abridging the right of the people to keep and bear w4r3z w00t!"

Re:Lessig? (2, Insightful)

Telvin_3d (855514) | more than 5 years ago | (#27437131)

The enormous benefit to who? Creators gotta get paid. Creators that never get paid stop creating, or at least stop doing very much creating because they are too busy doing some other job in order to pay the bills. Copyright, the idea that creators can exert limited legal control over who can copy their work, is a fairly successful real-world solution to this problem. And, on the whole, it's worked fairly well. Yes, things have started breaking down a little over the last couple decades and there are some problems that need to be addressed. A more limited term and more lenient fair-use and modification would go a long way. But content can NOT be free. It has to be paid for. The eventual viewer may not pay directly and instead pay through advertising or some such, but it's the same thing.

If copyright disappeared tomorrow, and I mean really disappeared overnight, the only new stuff showing up on the file sharing networks a week from now would be Linux builds. If, as a society, we decide that copyright is no longer working for us, we had better put an alternative in place before we pull the plug.

Re:Lessig? (4, Interesting)

PitaBred (632671) | more than 5 years ago | (#27437251)

The only alternative to copyright is... nothing. You can't copyright a concert. You can't copyright movie theater seats. Yet you can still sell those. If copyright disappeared overnight there would be plenty of things still being shared.

Stop think of P2P as the enemy... try thinking about it as "free publicity"

Re:Lessig? (1)

Shark (78448) | more than 5 years ago | (#27437379)

Are you trying to say that performing artists should *perform* to earn a living? Like singers singing for people, and musicians actually getting on stage and making music? Your novel ideas are bordering heresy, my friend...

Re:Lessig? (1)

EvanED (569694) | more than 5 years ago | (#27437537)

You can't copyright movie theater seats. Yet you can still sell those.

Concerts are certainly a reasonable argument, but I don't know if movie theater seats are. Theaters are already losing ground to people staying at home, and this will continue to be the case as large-screen TVs and home theater systems become more prevalent. Cutting the cost of seeing a movie from a few bucks (or a couple days with something like Netflix) to download it would, I suspect, become the death knell for most theaters.

Re:Lessig? (3, Interesting)

garett_spencley (193892) | more than 5 years ago | (#27437679)

Every single good or service that has ever been invented has been done to satisfy some kind of need or desire.

When you buy something, you are acting to relieve some form of uneasiness. Maybe it's just boredom or to be part of a fad (the pet rock comes to mind), or maybe it's for survival (food, clothing, shelter etc.). But every single product or service has only existed because people, at the time they were consuming that product, felt that it made their lives better.

So if people are staying home to watch movies, then either the need that going to the theater once satisfied is being better satisfied by other means, or the cost of going to the theater is no longer in line with their subjective valuations regarding what doing so is worth to them, or the need has vanished all together.

Assuming the need is being filled by something better (or cheaper or both), we now have some new invention that replaces the utility of a movie theater. If movie theaters all go out of business then those entrepreneurs, capitalists and employees will go into production that fills more urgent needs.

This process always involves a restructuring and people will be temporarily unemployed. But any attempt to force conditions to remain the same will be futile in the long run, and will only prolong the restructuring process. It's thus better for everyone if the movie theaters either go out of business or shrink to satisfy a smaller market.

Re:Lessig? (1)

CRCulver (715279) | more than 5 years ago | (#27437361)

A more limited term and more lenient fair-use and modification would go a long way. But content can NOT be free. It has to be paid for. The eventual viewer may not pay directly and instead pay through advertising or some such, but it's the same thing.

I wouldn't mind going back to patronage. After all, Greece and Rome had no notion of copyright, and in fact they had teams of amanuenses copying literature and selling it in the marketplace with no money going back to the author, but they still produced some of the greatest works of literature of all time. Plus, the upper classes tend to have better taste in arts, so a solution that gives more power to them to decide content than just anyone would probably be a positive step.

Uh... (1, Funny)

phoenix0783 (965193) | more than 5 years ago | (#27436947)

Uh...

A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracyâ¦

sharing (1)

bobsalt (575905) | more than 5 years ago | (#27437017)

might as well say p2p is fair use, the riaa/miaa think that someone bringing over a dvd/cd to watch with you is stealing...right?

Re:sharing (1)

91degrees (207121) | more than 5 years ago | (#27437033)

No. I don't think they've ever suggested that.

Re:sharing (1)

plover (150551) | more than 5 years ago | (#27437087)

Of course they have. [hamptonroads.com]

Re:sharing (1)

91degrees (207121) | more than 5 years ago | (#27437139)

I think there's a slight difference between taking a DVD to a friend and setting up a cinema.

Re:sharing (1)

fluch (126140) | more than 5 years ago | (#27437133)

And somewhere a RIAA/MIAA guy/lwayer reads this and thinks: "Hmmm, we completely forgot about this possibility of revenue!"

Re:sharing (1)

shark72 (702619) | more than 5 years ago | (#27437173)

"might as well say p2p is fair use, the riaa/miaa think that someone bringing over a dvd/cd to watch with you is stealing...right?"

No. You might be confused by the "unauthorized public performance" text in the FBI warning. It doesn't refer to watching a film with a buddy; not even the music or film industries believe this to be the case. Per US copyright law, a public performance is:

to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered

"Open to the public" and "substantial number of persons outside of...family and friends" are the key things to understand here.

Here's the funny thing: for music, public performance rights are licensed through ASCAP and BMI, which are run by and for musicians. Record companies (ie. the RIAA) only see part of this money if they happen to own a publishing company. So, you'd think that file-sharing enthusiasts would be OK with a system in which the artists are paid directly and the RIAA is bypassed, right? Whenever the subject comes up, the sympathy tends to lie with the business owner who isn't paying the performance rights society, and thus causing the artists to get less money.

Re:sharing (1)

poot_rootbeer (188613) | more than 5 years ago | (#27437413)

"Open to the public" and "substantial number of persons outside of...family and friends" are the key things to understand here.

Indeed.

Playing a DVD at home when a few pals come over == not public performance
Playing a DVD in the common room of a college dormitory building, all students welcome = likely not public performance
Playing a DVD over the video projection system in a college lecture hall, all students welcome, non-students may attend by paying $5 = probably qualifies as a public performance

Re:sharing (1)

91degrees (207121) | more than 5 years ago | (#27437551)

Playing a DVD in the common room of a college dormitory building, all students welcome = likely not public performance

This is probably the edge case. Probably not a public performance but there may be circumstances where it would be considered one - for example, if it was widely advertised and a large number of non-residents were there.

Re:sharing (1)

robkill (259732) | more than 5 years ago | (#27437571)

Here's the funny thing: for music, public performance rights are licensed through ASCAP and BMI, which are run by and for musicians. Record companies (ie. the RIAA) only see part of this money if they happen to own a publishing company.

Who handles what:

Songwriter copyrights: ASCAP/BMI (in Canada SOCAN) on behalf of the artist
Publishing copyrights: Harry Fox Agency
Mechanical copyrights: RIAA on behalf of the record label.
Digital copyrights: RIAA via SoundExchange on behalf of the record label and artist

Radio and live performances pay royalties for songwriter copyrights.

RIAA would like for radio to pay royalties on mechanical copyrights.

Many artists (especially those who perform other people's songs) want to add a "Performance copyright" so that radio would pay a royalty to the performer as well as the songwriter.

Pandora, webcasters etc. pay royalties on digital copyrights, which are split between the record label and the songwriter.

Playing the radio at a place of business will mean playing royalties for songwriter copyrights, while playing CD's at a place of business would mean paying royalties on both mechanical and songwriter copyrights.

OLGA, the online guitar archive, got in copyright trouble with Harry Fox for publishing tablature of copyrighted songs.

I'm sure NYCL or someone else who knows all the ins and outs can correct or expand upon this.

Re:sharing (3, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#27437771)

I'm sure NYCL or someone else who knows all the ins and outs can correct or expand upon this.

Don't be so sure.

Idiots (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27437023)

yes, people who pay thousands of dollars in a higher education are confused...........

Re:Idiots (0, Flamebait)

whitefang1121 (1432411) | more than 5 years ago | (#27437161)

Your an idiot!!!!!!!!! did you even read this article our did you just want to post for the fun of it you troll!!!!

And in summation (5, Funny)

gijoel (628142) | more than 5 years ago | (#27437041)

I would like to say that Chebacca is a Wookie. Wookie are not from Endor, they're from Kashyyyk.

This does not make sense. What are Wookies doing on Endor? Why would an eight foot tall Wookie want to live with two foot tall Ewoks?

What does this have to do with digital piracy? Nothing. If this does not make sense then you must aquit.

Thank you ladies and gentlemen of the jury.

Re:And in summation (1)

linhares (1241614) | more than 5 years ago | (#27437107)

wat?

not guilty!

Re:And in summation (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27437329)

Why would an eight foot tall Wookie want to live with two foot tall Ewoks?

The same reason why niggers prefer Asian women, you dolt!

Turning their own tactics against them (4, Insightful)

plover (150551) | more than 5 years ago | (#27437045)

The plaintiffs in cases like these usually involves throwing as many claims as possible into the fan, hoping that at least a few stick to the defendant.

This is also a favorite tactic of prosecutors in criminal cases these days: pull someone over for speeding, and charge them with possession, molesting a teenager, carrying a concealed weapon, and reckless driving. Shock the defendant into pleading guilty to the reckless driving charge in exchange for dropping the rest, when in reality he deserved no more than a $200 ticket for speeding.

So in this case, why not claim "fair use"? Why stop at just one claim? Why not raise a thousand doubts about the legitimacy of the claims? It's certainly no worse (nor less truthful) than the RIAA claiming a million dollars in damages for putting 10 files up on an FTP site.

Re:Turning their own tactics against them (1)

JCSoRocks (1142053) | more than 5 years ago | (#27437169)

I actually agree with this tactic. We need to be fighting fire with fire here. Prosecution has gotten more and more ridiculous. There's no reason defenses shouldn't follow suit. If that's what's necessary to beat these people back then let's do it.

P2P, not illegal files. (0)

Anonymous Coward | more than 5 years ago | (#27437063)

P2P file sharing is fair use.

Sharing copyrighted material is not fair use, unless the copyrighted material can be shared under the fair use clause (eg: a documentary with a clip of a movie/song).

Why? (1)

ceoyoyo (59147) | more than 5 years ago | (#27437067)

"I dare say that even the most avid file-sharers among us would be a bit skeptical of this line of reasoning."

Why is that? That is the situation in Canada (at least until some US corporate alliance successfully bullies our MPs into changing the law).

NewYorkCountryLawyer (4, Informative)

TheRaven64 (641858) | more than 5 years ago | (#27437141)

Since most people don't RTFA, I thought I'd share this gem, where Ars quotes Ray Beckerman [slashdot.org] :

To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible.

Sounds like this new exchange won't do anything to alter his opinion...

Re:NewYorkCountryLawyer (2, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#27437201)

Since most people don't RTFA, I thought I'd share this gem, where Ars quotes Ray Beckerman [slashdot.org]:

To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible.

Sounds like this new exchange won't do anything to alter his opinion...

You got that right, Raven.

Overturning Fair Use? (1)

Ifni (545998) | more than 5 years ago | (#27437143)

It seems to me that this strategy is more likely to provide fuel to the fire for overturning or severely diminishing Fair Use. If he can prove that electronic distribution of copyrighted works is covered under Fair Use, then it makes a strong case that Fair Use has overstepped its intended bounds. Wendy Seltzer says as much in the referenced Ars article, though I came to this conclusion just from reading the summary before deciding to make sure the summary wasn't just misleading.

My statement on "fair use" & p2p file sharing (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#27437153)

Although I have raised fair use as an affirmative defense in several cases, I haven't litigated any fair use defense scenarios yet, so I'm not going to be able to comment in depth, and I'm not going to get into any dialogue about it. Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA. When I have an argument to make, my adversaries can read about it in my court papers; and then we can chat about it on Slashdot until the cows come home.

But I will say this much for the benefit of my friends here:

1. Prof. Nesson and all of his assembled, learned advisors and cyberlaw scholars do the subject an injustice by overly simplifying the term "file sharing".

2. There are many different factual scenarios within the penumbra of "file sharing".

3. Some of those factual scenarios would clearly be entitled to a "fair use" defense; some clearly would not; some fall in a gray area. Contrary to what the 'content cartel' lackies would have you believe, and contrary to what Prof. Nesson's friends seem to think, we are at the beginning -- not the end -- of mapping out the boundaries of "fair use" in this area.

I will also interject, from a procedural standpoint, that I find it unusual and inexplicable that a conversation between an attorney and prospective expert witnesses would be posted on the internet; one would have to wonder whose side the attorney is on.

Re:My statement on "fair use" & p2p file shari (4, Insightful)

langelgjm (860756) | more than 5 years ago | (#27437305)

Based on the traditional four point analysis of fair use, the typical "file-sharing" /.ers are used to doesn't seem to fair too well:

1. The purpose and character - file-sharing is hardly transformative or derivative. You could argue transformation much better with things like mashups, etc. But torrents of movies and music?

2. Nature of the copied work. If it's factual, the infringer is on better ground - e.g., if you're a chemist who photocopies a journal article so that you can take the copy into the lab with you, rather than the entire journal. There are of course fair uses of creative works, too. This would of course depend on the individual work, not "file-sharing" as a whole, though probably the vast majority of file-sharing is in creative works, rather than scientific/factual.

3. Amount/Substantiality - well, most people I know torrent the whole film, not just 5 minutes of it, so...

4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.

Re:My statement on "fair use" & p2p file shari (2, Informative)

Kindaian (577374) | more than 5 years ago | (#27437471)

4. Effect upon economic exploitation of the work - would seem to go against file-sharers. Obviously they aren't buying it! And by sharing it, they may be hurting the owner's ability to sell it, etc.

Or in favor... because for sure, there are no scientific studies regarding the issue (at least of my knowledge).

Sometimes a music becomes a success just because it was wildly distributed on the p2p.

Also of notice... "file-sharing" isn't only p2p... you can have file-sharing on almost all current OS...

Even windows has that capability since windows for workgroups... ;)

Red herring? (4, Interesting)

Ungrounded Lightning (62228) | more than 5 years ago | (#27437425)

Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA.

Which makes me wonder if Charlie Nesson might be leading the opposition down the garden path, attempting to bury any real leaks out of his student brain trust under a barrage of unrelated sideshow acts?

(I'm reminded of an alleged CIA tactic called "the second cover": You wrap the secret in TWO cover stories. The first is plausible, even if potentially easily detected as bogus. The second is the kind of stuff you read about in tabloids and certain late-night talk shows (some of which may be the fossils of old second cover stories). When somebody penetrates the first cover they find the second cover. At that point any of several things may happen, including: A) They believe the second cover. Hilarity ensues. B) They "recoil" back to the first cover. C) They become suspicious of any other reports on what is actually under the covers.)

(Then again, maybe Charlie's mind has finally gone. B-( )

As with NYCL's adversaries, we'll know what the Billion Dollar Charlie team's arguments REALLY are when we read them in the court papers. B-)

Meanwhile, if this is what is going on, I hope my speculation (if it has any effect) adds to the confusion rather than blowing the cover.

Re:Red herring? (3, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#27437453)

Unlike Prof. Nesson, I can see no advantage flowing to my clients and future clients from my tipping my hand to the RIAA.

Which makes me wonder if Charlie Nesson might be leading the opposition down the garden path, attempting to bury any real leaks out of his student brain trust under a barrage of unrelated sideshow acts? (I'm reminded of an alleged CIA tactic called "the second cover": You wrap the secret in TWO cover stories. The first is plausible, even if potentially easily detected as bogus. The second is the kind of stuff you read about in tabloids and certain late-night talk shows (some of which may be the fossils of old second cover stories). When somebody penetrates the first cover they find the second cover. At that point any of several things may happen, including: A) They believe the second cover. Hilarity ensues. B) They "recoil" back to the first cover. C) They become suspicious of any other reports on what is actually under the covers.) (Then again, maybe Charlie's mind has finally gone. B-( ) As with NYCL's adversaries, we'll know what the Billion Dollar Charlie team's arguments REALLY are when we read them in the court papers. B-) Meanwhile, if this is what is going on, I hope my speculation (if it has any effect) adds to the confusion rather than blowing the cover.

I hope you're right, and it's all a clever diversionary tactic intended to confuse and distract friend and foe alike from the real objective.

Whose side (0)

Anonymous Coward | more than 5 years ago | (#27437643)

I will also interject, from a procedural standpoint, that I find it unusual and inexplicable that a conversation between an attorney and prospective expert witnesses would be posted on the internet; one would have to wonder whose side the attorney is on.

The side of openness of information?

Downloading is legal in some countries (0)

buchner.johannes (1139593) | more than 5 years ago | (#27437181)

Downloading movies/music is actually legal in some countries (like Austria). It is protected by the "Fair Use". Uploading/Sharing is obviously prohibited. This makes using protocols that do uploading while downloading (like Bittorrent) illegal (for copyrighted content).

There are more aspects in the (EU) E-Commerce law, e.g. linking to obviously illegally hosted content, with exceptions for general purpose search engines, that you have to react in time if you (unknowingly) host links to infringing content, etc.

Re:Downloading is legal in some countries (1)

buchner.johannes (1139593) | more than 5 years ago | (#27437291)

A website [diepresse.com] explaining the law (in german only, sorry, try a translator).
I was wrong though, it is based on the right to own a private copy (regardless of the source), not "Fair Use".

Why not? by:avid file share person (0)

Anonymous Coward | more than 5 years ago | (#27437257)

Why not? I do not see a problem with his reasoning. Is it not what a person DOES with those files/data that decides if they are breaking the law?

If a news paper can steal a sentence from a book, audio tape, or even another newspaper to make commentary on it, then why can't people trade data so that they can review and additionally make commentary on it?

Just because a million people happen to be reviewing said files should not mean anything illegal is going on... heh heh. Additionally just because it is P2P does not mean its illegal. Many opensource programs and applications are traded on P2P, as well as other public domain works.

And to take this line one step farther. What happens if you like to copy all of your cd's to a hard drive to mount as ISO's for performance, storage, or backup reasons? I keep all of my cd's closed up in a box in storage. If my drive got raided I would look like a pirate extraordinaire even though everything is legit!

The whole argument here is basically that we need to take everyone's steak knives away because some people use the steak knife to break the law! P2P is just a utility! I can be used for good or evil. Creating rules to cripple it just because some Big Exec feels like he is losing cash is stupid!

Why? (5, Insightful)

migla (1099771) | more than 5 years ago | (#27437301)

(didn't read tfa, but here's why I think we should be sharing information:)

Because we can!

Nevermind if it's fair use or illegal. We can enrich the lives of all mankind with a press of a button. Welcome to the 21:st century.

chewbacca defense (1)

speculatrix (678524) | more than 5 years ago | (#27437375)

sounds like this guy has been to the chewbacca school of law! [wikipedia.org]

I've to agree... (2, Interesting)

Kindaian (577374) | more than 5 years ago | (#27437385)

If you own a copy of the work, and you use the p2p to get an alternate format of the same work, i would say it MAY be fair use.

If you use p2p to sample the work before buying it or not, it also MAY be fair use.

It depends ALOT of your local laws... the state of mind of a kitty in the other side of the world and the phase of the moon.

And... IANAL

How About Civil Disobedience? (2)

Nom du Keyboard (633989) | more than 5 years ago | (#27437407)

If not Fair Use, how about individual Civil Disobedience? Consider filesharing as protected, not for profit, speech in protest of the decades of record companies ripping off consumers as well as artists through their longtime payola, high bar of entry for everything from recording studios to pressing plants, monopoly of the sources of production, distribution, promotion, and sales of music. And don't forget the bundling of 1 worthwhile song and 11 crap tracks in a highly overpriced, take-it-or-leave-it, CD, or the outrageous statutory damages that their lobbying and paying off of the politicians have jammed into Copyright Law. Oh, and did I mention their outright theft of the Public Domain. Songs copyrighted today will not enter the PD during the remainder of your life time. Not exactly what our Founding Fathers had in mind, having lived through that situation of eternal copyrights in Europe of the time already.

Yeah, I'd call that something to protest by any means possible.

Re:How About Civil Disobedience? (2, Informative)

Ungrounded Lightning (62228) | more than 5 years ago | (#27437611)

... how about individual Civil Disobedience? Consider filesharing as protected, not for profit, speech in protest of the decades of record companies ripping off consumers as well as artists ...

As I understand it, committing a crime or tort as an act of Civil Disobedience does not carry a legal justification. The civilly disobedient person is still liable for whatever punishment, restitution, etc. is appropriate for the action.

It may be construed to provide a MORAL justification, resulting in a jury nullification. It may set the stage for pleading a necessity defense. It may be a necessary step in obtaining the standing to prove in court that a law is unconstitutional and getting it struck down. There may be so many others participating and/or the cause may be so popular that the authorities decide to let it drop. And so on. But absent something like that, expect to be a jailed and/or paupered martyr for the cause if the authorities bring you to court over such an act.

Re:How About Civil Disobedience? (1)

nextekcarl (1402899) | more than 5 years ago | (#27437659)

I'm pretty sure the article is about how to not get arrested/pay a fine. Civil Disobedience is useful, but it is not a defense AFAIK. IANAL. IDNRTAYH.

In The Nethelands it is fair use (1)

BlackCreek (1004083) | more than 5 years ago | (#27437437)

FYI I would like to point to my fellow slashdotters that in many countries unlike the USA, it is explicitly spelled out as legal the downloading of copyrighted music or movies for _private_ _non-comercial_ use. In the Netherlands it is like this, and AFAIK also in Spain.

This is just to point out that it is possible to have sane laws, and that the world just doesn't come to end if you do.

Re:In The Nethelands it is fair use (1)

SwashbucklingCowboy (727629) | more than 5 years ago | (#27437583)

What makes you think that's sane?

Re:In The Nethelands it is fair use (2, Interesting)

BlackCreek (1004083) | more than 5 years ago | (#27437803)

What makes you think that's sane?

The fact that I believe that people are entitled to have access to culture.

The working model here in the NL shows that you can guarantee the right to access cultural works, and still have a working healthy (lucrative) market for artists and the like.

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