Charles Nesson, a Harvard Law Professor, is to defend Joel Tenenbaum, a 25 year old down-loader of copyright songs, claiming the “fair use” exception to Copyright Law since the downloading was for personal use and not commercial. The trial is due to take place at the United States District Court for the District of Massachusetts under Judge Nancy Gertner and is expected to be completed by the end of this week. In addition to the fair use defence, Nesson is planning to challenge the legality of the fines, claiming that the plaintiffs, the RIAA, Sony and Warner Brothers — are “seeking to punish him beyond any rational measure of the damage he allegedly caused,” and that the punishment violates the 5th and 8th Amendments. Only one down-loader has been tried under the Digital MillenniumAct, with most people accused of downloading songs preferring to settle out of Court. That case was determined a mistrial, with performers whose rights were being inforced, claiming to be ashamed of the prosecution on their behalf. Nesson, who co-founded the Berkman Center for Internet and Society in 1996, has argued that Tenenbaum was initially accused of illegally sharing seven songs, a tally later increased to 30 songs. The RIAA estimates that illegal music-sharing worldwide costs $12.5 billion each year and causes 71,000 job losses in the United States. Nesson is on record as defending free Internet, He does not dispute the need for copyright laws but believes that existing copyright laws should be modified to reflect the evolving social norms of a digital, interconnected world.
The Fair use defence is well established. It is determined by four factors:
- the purpose of one’s use
- the type of work under copyright protection
- the amount and importance of the portion used
- the effect of the use on the market
If Nesson’s strategy succeeds, the case could set a precedent that legalizes all non-commercial file-sharing, on the grounds that such behavior in a digital society does not violate existing copyright laws.
See http://www.thecrimson.com/article.aspx?ref=528613 for more information.
