Sunday, July 5, 2009

Tenenbaum's own fair use expert: downloading songs is 'illegal,' 'breaking the law,' 'cheating'

How is Harvard Law Professor John Palfrey, Joel Tenenbaum's remaining expert on fair use, going to be helpful to the defense cause, given that he has described the use of peer-to-peer networks to download and "share" songs as "illegal," "copyright infringement[]," "break[ing] the law," and "cheat[ing]"?

See this 2004 Boston Globe op-ed piece in which Palfrey argues that purveyors of p2p software including Grokster should not be held liable for their users' infringements (a position subsequently rejected by the Supreme Court).

UPDATE: In his 2008 book Born Digital: Understanding the First Generation of Digital Natives, Palfrey again makes clear that use of p2p networks to download and "share" music constitutes copyright infringement:
Use of Napster to download songs was "breaking the law" (p. 133)

"In a legal sense, anyone who uploads music on P2P networks is violating the intellectual property of the artists, whose interests are formally protected by the laws of virtually every nation in the world." (p.133)

On Napster: "there was little doubt that the file sharing itself was illegal..." (p. 134)

Napster was "well-known for large-scale copyright infringement" (p. 135)

On the record labels' individual suits: "most [defendants] are indeed liable for the infringement" (p. 141)

'[W]e believe that it is important to uphold the rule of law, not to ignore rules that seem merely inconvenient.... " (p. 142)

"Take note: Online file-sharing of copyrighted works is illegal in the United States and in most other jurisdictions in the world." (p. 142)

"people who are sharing thousands of songs for free when they ought to be paying for them" (p. 150)
Palfrey argues persuasively that file-sharing is popular, and makes clear his disagreement with the record labels' suits against individuals. But he forthrightly, and repeatedly, acknowledges that the use of p2p systems to obtain music without permission is blatantly illegal. If he indeed testifies at trial, cross-examination should be very interesting.


  1. Maybe he meant this special case of "breaking the law" in the sense that the law becomes broken and due for an update?

  2. @Mark Kerzner:

    I recommend you read the entire Globe op-ed (which I linked to), and the relevant pages from his book (which you can do through's "search inside" feature). There is no doubt whatsoever that Palfrey is saying that, under current law, use of p2p networks to download and "share" music without permission constitutes copyright infringement and is therefore illegal.

    In his book, Palfrey makes clear that he does not support the labels' litigation campaign, but he acknowledges that those who use p2p to obtain songs are liable. He does not attempt to argue that such activity is fair use, and, given his repeated and unequivocal statements about its illegality, he necessarily acknowledges that it is *not* fair use. As Section 107 says, "the fair use of a copyrighted not an infringement of copyright."

  3. Sooo...if it's illegal, and therefore presumably damaging to artists and property-holders, then why is the RIAA's litigation activity unsupportable? (Or is this explained in the book?)

    I don't see how you can claim that rights are being infringed but that we SHOULDN'T expect the rights-holder to act to protect them.

  4. @DensityDuck:

    I haven't read the entire book, and I want to be careful not to mischaracterize it. But from the section from which I quoted, it appears that Palfrey's objections to the litigation are: 1) it was bad PR for the labels; 2) it targeted some sympathetic defendants; 3) it made some errors in ID'ing infringers; and 4) it hasn't stopped infringement.

    But Palfrey's conclusion about the lawsuits is not entirely negative. He does acknowledge (p. 142) that "the suits brought against file-sharers [] have served at the very least a positive pedagogical function."

    From the portions of the book I have read, it seems to take a rather measured approach; it is *not* a screed against the entertainment industry.


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