Harvard P2P lawyer: file-swapping is fair use—no, really!

Is Harvard Law professor Charlie Nesson crazy? As Nesson himself admits, "this does seem to be a question on many people's minds."

In our recent conversation with Nesson, the professor said he hopes to turn the Joel Tenenbaum P2P file-swapping case into a wide-ranging discussion on copyright. But a set of newly published e-mails indicate that Nesson wants to go further than anyone—including the most prominent "free culture" academics—previously suspected. Not content to argue that massive statutory damages are unconstitutional in such cases, Nesson plans to press an audacious claim: noncommercial P2P file-swapping is "fair use" and thus totally legal.

This week, Professor Nesson published to his blog a batch of private e-mail correspondence about his strategy in the case. In the e-mails, he lays out his plan of attack. "Fair use" is not so much "defined" in US copyright law as it "bounded" by a set of four questions that can be applied to any particular use of copyrighted material to see if the use is allowed without permission. The questions ask whether the new use is "transformative," whether it uses a part of the original work or the whole thing, what the effect of the use is on the future market for the original, and what sort of work the original piece was (published or unpublished? factual biography or fictional novel?).

Using the test, even noncommercial file-sharing would seem to fail, since it is is no way transformative, copies the entire song in question, and seems to have at least some negative effects on the market for that song. But Professor Nesson believes that "fair use" as a concept goes beyond the Copyright Act. "Fair use is recognized as a common law, perhaps a constitutional concept, not defined by but merely recognized and continued by the statute (Sony, Harper); that the statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and the question is a jury issue."

The strategy then is to seek a jury trial and convince the jurors that fair use goes far beyond the description in US law. Assuming the jury buys this argument, Nesson can then tap into a basic sense of fairness to claim that a federal trial with the potential of $150,000 in damages per song is unfair in a broad sense, especially when Joel was (allegedly) a noncommercial P2P user back in 2003, when rightsholders were still dragging their feet in "licensing commercial alternatives for kids to buy single songs in digital downloads."

In the attempt to codify this notion of "fairness" into a principle, Nesson comes up with this: "Seems to me to be an understandable principle that it's okay to consume and share nonrivalrous good which are available on the net for free."

Experts puzzled

Unfortunately, no one else appears to be buying it, not even the people Nesson and his students hope to call as expert witnesses at trial.

Stanford professor Lawrence Lessig said that he was "surprised if the intent is to fight this case as if what joel did was not against the law. of course it was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn't."

Wendy Seltzer, who heads up the Chilling Effects website and served as an EFF staff attorney, was "puzzled" by the fair use argument. "I fear that we do damage to fair use by arguments that stretch it to include filesharing—weakening our claims to fair use even for un-permissioned transformations," she wrote. "I am much more comfortable disagreeing with the law than claiming at this point in time that it already excuses filesharing."

Terry Fisher, who heads Harvard's Berkman Center for Internet & Society, pointed out that P2P filesharing would likely fail the four factors test. "This is not to suggest, of course, that it's sensible for the legal system to be set up in such a way as to enable and encourage the RIAA to go after people like Joel," he added. "I devoted much of a book to arguing that it’s not—and I'm happy to testify to that effect. But the fair use doctrine does not, in my view, provide a plausible vehicle for reform."

The discomfort with strategy extends even to Nesson's own students, who are doing much of the research and writing. Ray Bilderback, who is writing the "disclosures" about expert witness testimony, wrote that "all of this looks very bad from my perspective. I think that introducing our experts at this late stage to the very novel argument that we intend to raise at trial—an argument which has no real basis in case law or moderate academic scholarship—is a blunder that could have very serious consequences. At this point, I have no idea what our disclosures will look like. And they have to be filed TOMORROW. Bad, bad, bad. We should have been working on this for weeks rather than days."

Given the general craziness of the case already, one is tempted to say this is simply par for the course. But posting internal strategy e-mails wasn't enough for Nesson, who also uploaded a lengthy audio clip of his wife, Fern, "twittering into my life." Fern's "twittering" takes the form of a (half-joking?) diatribe against Bilderback ("he annoys me so much," "the guy is such a schmuck," "he's my enemy already,") and a rant against those who disagree with Nesson's reading of the law ("then they're going to have to go back to the fucking cases and really consider it instead of spouting all this shit that they're teaching their students").

It's all rather... extraordinary, extraordinary enough that Nesson has now taken down the e-mails from others. The Internet never forgets, however; not that Nesson is any way bothered by posting such material. Throughout this case, he has attempted a radical openness that has (to date) irritated the judge, music industry lawyers, and even those lawyers who support his position. But for those who want to see what goes into a federal case and the strategy that a noted Harvard Law prof pursues as he preps for trial, Nesson may be the ideal litigator. "Billion Dollar Charlie" certainly doesn't hold back, even on potentially embarrassing material.