Top lawyer claims
In a move that will set a
chill in the music and film industry's bones one of the US's top lawyers is set
to take them to the cleaners claiming that file sharing on P2P networks is fair
use.
For years the music and film industry avoided taking on Harvard students
for file sharing, fearing that there were people there who could give them a run
for their money because they would know the law. Now a top law professor
Charles Nesson has revealed he will be defending a student against the RIAA by
claiming that there is noting illegal about swapping files provided you don't
make any money on the transaction.
Nesson is defending file-swapper Joel
Tenenbaum and in court filings, revealed a doomsday strategy for the film and
music business. If he wins, he will essentially legalize the sharing of all
digital goods, copyrighted or not, by noncommercial users. He will argue
that statutory damages only apply to commercial infringers. The law offers
rightsholders the chance to seek either statutory or actual damages, but that
the two are meant to be equivalent.
If the two remedies are equivalent, and
if "individual noncommercial copying results in no provable actual harm to the
copyright harm holder," then actual damages would be zero-and so would statutory
damages.
Fair use is defined by four factors and Nesson is confident he can
give a jury evidence relating to each one. Another one of his defences is
that the jury should consider "the copyright holder's knowledge of and
assumption of risk when it published the copyrighted work that work would be
ripped and shared on P2P networks."