Tuesday, April 7, 2009

Nesson on fair use and peer-to-peer: then and now

Thomas Sydnor has a very interesting post at the Progress and Freedom Foundation's blog, making a compelling argument that Harvard Law School Professor Charles Nesson's views on the copyright issues raises by peer-to-peer uploading and downloading have undergone some dramatic changes since the days when he weighed in as an amicus in the Grokster case.

The whole thing is worth reading, but what really struck me was Sydnor's discussion of a May 2004 amicus brief in Capitol Records, Inc. v. Alaujan (with with the Tenenbaum case was consolidated), and authored by Nesson and several colleagues at Harvard's Berkman Center for Internet and Society. The amicus brief is a lengthy primer on issues raised by the record labels' suits against individual p2p users. Of particular relevance to the Tenenbaum case -- especially given Nesson's recent indication that he intends to mount a fair use defense -- is that the 2004 brief is extremely skeptical that a fair use defense would be successful in the p2p context. Said Nesson's brief of the argument that downloading in order to "sample" a song before purchase is fair use: "not...compelling" (p. 5). As to uploading: "Fair use arguments in regard to uploading are weak." (p. 5). See additional discussion of fair use at 32-42. I'm not sure I'd go so far as to claim, as does Sydnor, that Nesson is guilty of "sophistry." But it will take some awfully fancy footwork for the professor to explain away his words from 2004 if the fair use defense actually does get litigated in Tenenbaum.

One last comment on Sydnor's post. "Nessianic influences"? Genius.

1 comment:

  1. Thanks for the kind words and the great coverage of Tenebaum. I should, however, clarify one point about the extent to which Professor Nesson and the other Berkman professors might be fairly accused of “sophistry.”

    As to Defendant Tenebaum’s potential fair-use defenses, I agree that Professor Nesson cannot be fairly accused of sophistry. It’s not sophistry if a person’s account of fair use changes radically when he shifts from the role of neutral scholar to the role of attorney—suppressing your own views and advocating those advantageous to your client is any attorney’s job.

    That said, even if no sophistry is involved, this episode does show why one ought to avoid appearing in the capacity of neutral scholar and attorney in the same case. The Tenebaum Plaintiffs have every right to quote at length the dispassionate-scholar analysis of fair use offered by the Defendant’s attorney whenever he utters the phrase. That’s not sophistry either.

    But I would use the term “sophistry” (or worse) to describe the Berkman professors’ little game of Two-Card Monte, (i.e. blaming infringement on the programmers when the users are sued, and blaming it on the users when the programmers are sued). That is sophistry, and it’s not even artful.

    Moreover, it is sophistry of a disturbing sort: it seems to show university professors putting the welfare of commercial corporations above the welfare of university students. Simply put, if the Berkman professors really thought that distributors of file-sharing programs were duping students into sharing files that could land them in the concrete shoes of Defendant Tenebaum, then they should have done something about it—even after realizing that doing so could show that program distributors should be held liable for inducement.

    To be sure, none of the above appears to be directly relevant to the issues in Tenebaum. Nevertheless, I do think that it could be introduced to attack the credibility, expertise, and reliability of any Berkman witness who might testify.

    In any case, thanks for the comments and your much-appreciated work on Tenebaum. –Tom


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