

Harvard P2P lawyer: file-swapping is fair use — no, really - swombat
http://arstechnica.com/tech-policy/news/2009/04/harvard-p2p-lawyer-file-swapping-is-fair-use--no-really.ars

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cduan
Oh dear. From the one lecture of his that I attended, I knew that Charlie
Nesson had some unconventional ideas, but this is a bit excessive. (You know
you should be worried when Lawrence Lessig dismisses your fair use argument.)

The student he is representing should be worried that all this showmanship is
angering the judge, who would then give less credence to legitimate arguments.

~~~
frig
Nesson's a character, no?

One of the most distasteful aspects of legal practice is that most legal
arguments take the form of factual statements (or at least claims of fact),
but the factual content of the speech is secondary to the effects it's hoped
to have (on its listeners).

So put yourself in Nesson's shoes; he's doing this case pro-bono, and
therefore has no real worried about being paid for his time. Thus, Nesson has
no incentive to artificially shorten the length of his defense (out of concern
for working longer than his client can afford).

Nesson also wants to win this case.

So you've got someone for whom: time is no real object, and winning is a goal.

In that circumstance, what's the harm in trying a "fair use" defense? It
probably won't fly, but it's one more thing to try, and one more thing for the
plaintiff to have to argue against (thereby further draining plaintiff's
resources, because plaintiff _is_ paying for their representation's time
here).

It's not entirely harmless, sure -- a few too many wild conjectures and
Nesson's credibility in court may be somewhat tarnished (though, even there,
keep in mind Nesson's (1) something of a legend and (2) already known as a
loose cannon, so compared to a run of the mill attorney the impact of one or
two wild arguments on his in-courtroom credibility is harder to calculate) --
but it's one more thing that _might_ work and it's one more way to try and
exhaust the plaintiff's will to proceed (and I guarantee you this is not the
only line of defense Nesson's got).

So, regardless of whether (1) Nesson thinks file-sharing is actually fair use
and (2) Nesson thinks he can convince anyone else file-sharing is actually
fair use (note: (2) is independent of (1)) it's possible to reverse-engineer
the thinking that might make the risk/reward calculation on advancing this
line of argument look promising.

But, due to the practical constraints of legal speech, you'll never see any of
these statements:

\- your honor, I personally don't think file sharing is fair use and I
actually don't think I'll be able to convince anyone else in this courtroom
that filesharing is fair use, but in the interest of exhausting my opponents
with every hare-brained scheme I can conceive I'm going to spend a couple days
arguing the point. Let's proceed.

\- your honor, I personally think file sharing is fair use and am savvy enough
to understand I won't convince anyone here of that via any amount of
argumentation, but I am cocksure enough of my argumentative abilities that I
won't say anything so immediately laughable that all y'all will be hard-
pressed to give a reasoned explanation for why you should shut this line of
argumentation down prematurely so you should plan on hearing me out over the
next several days.

...or anything similarly candid, ever. Instead, you'll just hear something
like what you've heard, which is a straight-faced assertion with no
qualifications or caveats; it might be more honest to give a statement like
one of the impossible statements above, but giving the statement such a form
would be self-defeating in light of the intended effect of making any such
statement.

~~~
frig
And, having read his blog post that was referenced in the linked article, this
sounds about right.

Strategy-to-win is step 1: get a jury trial going.

Step 2: build an argument that the notion of "fair use" is one of those
constitutional notions that can be inferred from the constitution even when
not mentioned explicitly (eg some notion of privacy being inferred from 4th
amendment, etc.)

Step 3: argue that stuff like the "4 factors" test are not definitive but
merely illustrative -- they serve to illustrate the considerations that one
ought to consider when making a judgement of fair use, but do not _define_ the
notion of fair use, which is inferred directly from the constitution and thus
precedes any later developments like "4 factors"

Step 4: argue that b/c "fair use" is an affirmative defense (meaning, a
defense you can make when you're brought to trial, as opposed to an explicit
grant of rights to the "fair user") the meaning of fair use is always and
everywhere up to a specific jury in a specific case to decide. Remind jury of
step 3 (that stuff like 4 factors is actually only illustrative and not
definitive) and that at the end of the day whether or not the defendant is
making "fair use" is entirely up to the jury and the jury's conscience.

Step 5: argue from conscience that there's no way the current set of file-
sharing penalties are in any sense "fair", and again remind that it is
ultimately the jury's responsibility to make a decision as to what is or is
not "fair use" and thereby ensure fairness.

This is a better strategy than it sounds in summary, though it only stands a
chance of working if Nesson's hopes for a hollywood-type free-ranging trial
come about; the threat of such a thing may be all he needs to get this case to
settle, which counts as a win for his client, even if it's a sub-optimal way
to win for Nesson himself.

The argument for "illustrativeness" is genius if fully developed; it's
basically an attempt to transform the restrictions on the grant of authority
to Congress to institute copyright and patent laws ("to promote the progress
of science and useful arts") from dead letters to the source of a notion of
"fair use":

\- on the one hand, if such-and-such a use is shown to promote the progress of
science and useful arts then laws restricting such a use require scrutiny (to
ensure the net effect of the restriction balances out to promotion of progress
of science and useful arts)

\- on the other hand, if a restriction on a particular use does nothing to
promote science or useful arts, then it's perhaps consitutional

...and in this picture the "4 factor" test would just be a useful set of
guidelines for determining when a law-as-written is unconstitutional as
applied to a particular set of circumstances.

It's also clever for its effect on the judiciary: Nesson's hardest targets
there will hail from the right-wing, who typically lean towards strict
constructionism (supposedly, only considering the raw language of some law) or
an originalist (supposedly only considering the original intent of the writers
of some law). However, it'd be _difficult_ for either of those two schools to
straightfacedly argue that the constitutional language about the "progress of
science and useful arts" is just decorative fluff -- it'd put them in the
position of having to argue that "yes, that language does mean something, we
just disagree about what", which is in-and-of-itself a huge win.

And, secondly, if he can get this to a jury all he has to do is get done with
steps 2 and 3 and then he's converted the trial from a nitpicky study of
specific statutes to a general debate on "fairness", and then he's on much
stronger ground.

He could, from there, abstract from the specifics of the case at hand to
arguing that from the position of someone who isn't that familiar with the law
-- eg, a 10 y/o -- it literally would make _no sense_ for copying a cd for a
friend or downloading something from the internet to carry fines in the 6
figure range, using argumentation along the following:

\- tv ads for isps are always emphasizing download speeds for downloading
music and movies etc. and sending files, etc.

\- tv ads for computers always talk about how easy it is to send files or burn
cds and dvds, etc.

\- blank cds and dvds are available at supermarkets and 7-11 and all that

\- stuff like ipods or cellphones with music capacity are source-agnostic;
even with the itunes store it doesn't stop you from loading mp3s from
elsewhere

\- youtube, etc is full of music videos and so on, often with hundreds of
thousands of views and not uploaded by anyone "official"

\- tv and radio and internet radio stream free content over the air and it's
legal to record it

\- school projects often involve xeroxing stuff and making collages and so on

\- there's libraries (run by the government) that loan stuff out for free,
it's fine to let friends borrow stuff, and if you're going to loan to friends
it's more convenient to just burn a copy than actually loan the disc

...but then wtf? I downloaded some tunes and now my parents are being sued for
$150k+?

It's not an airtight argument, but on grounds of pure fairness it's not
unconvincing.

I doubt Nesson'll get his day in court to argue this line of reasoning -- and
if he does it'll probably be shut down earlier rather than later -- but the
apparent strategy (once fleshed-out) is an inspired mix both of legal
interpretation and lawyerly strategy.

~~~
greendestiny
It's quite a convincing argument against $150k fines, but I'm sure it has
anything to do with fair use.

------
drinian
Excusing peer-to-peer file-sharing because it falls under the nebulous cloud
of "non-commercial" use seems ridiculous. Espousing a social-contract model
for copyright doesn't suddenly mean that only the end-users get to dictate the
terms of the contract.

~~~
RobGR
What do you mean, "espousing a social-contract model" ? The authority to
create a copyright law is explicity granted in the US Constitution for the
precise purpose of a greater social good, "to promote the useful Arts and
Sciences". So there is a contract there - congress is allowed to make
copyright laws, but the rest of society gets promotion of the useful arts and
sciences.

It's not an accidental addition; in Europe, copyrights and patents and other
monopolies were handed out by Kings to reward friends, often with disregard to
who the inventors and authors were. Our system gives the copyrights and
patents to the authors and inventors, and it has to be for a limited time, and
if the system does not promote the useful arts and sciences but instead a form
of welfare or subsidy of certain interests, then you have to find authority to
do it under some other part of law; it may in fact be unconstitutional.

Also, I find your remark about "doesn't mean that only the end-users get to
dictate the terms of the contract" silly. Of course you realize like any
literate person that a contract is a "meeting of the minds", that neither
party gets to dictate the terms, but both parties have veto power and can not
sign on.

I am on both sides of the contract, as a person who writes copyrighted
computer code, and a person like the rest of the US who is restricted in
copying other people's copyrighted work. I don't see the contract as a good
one, and I'm willing to scrap the whole thing if it cannot be modified.

There is little evidence that the current state of copyright is helping the
economy, the "Useful Arts and Sciences", or society as a whole. Not only is
there ample reason to exclude the non-commercial distribution from it, I would
sign on for eliminating the whole of copyright and patent law, the entire
Title 17 and 35 (I think) of the US Code. Allowing the free copying of
anything in a non-commercial way is nice little experiment we could run for a
couple of years, and if starving silicon valley workers aren't forced to
resort to canibalism, we ought to can the rest of the system too.

I'm not alone in pointing out the system is not function to incease the
economy; numerous smart people over the years have said the same thing.
Fredrich Hayek, whose work is generally considered staunchly right-wing and
pro-capitalism and etc, said as much in "The Road to Serfdom" in the 1940s.

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sfk
"Seems to me to be an understandable principle that it's okay to consume and
share nonrivalrous [sic] good which are available on the net for free."

I keep hearing this argument that the owner of the original file does not lose
anything if you copy it. Well, the owner of a banknote does not lose anything
either if you make 10000 copies of it.

Both files and money have an abstract value, and copying dilutes the value,
hence copying is forbidden.

~~~
ajkirwin
Also, your argument is fallacious. A digital good does not really have any
instrinsic value in and of itself, only what people make of it.

Whereas a dollar bill is worth just that, a dollar.

~~~
rw
A dollar is worth a dollar because a lot of people want it that way. Gold is
"worth" 900USD because a lot of people want gold. But not _too_ many people -
otherwise the price would rise.

My point is that nothing has intrinsic value. The market parameters of supply,
demand and prices are one way we assign value to things.

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riahi
Even though his argument seems optimistic, hopefully he can reduce some of the
crazy awards and "lost revenue" or perhaps expose some of the inadequacies in
linking actual filesharing to a particular person.

