Comments on: File sharing and "fair use" http://inpropriapersona.com/file-sharing-and-fair-use/ Law + tech + history, from a JD/PhD graduate student in the history of science. Sat, 19 May 2012 17:25:23 +0000 hourly 1 By: krisnelson /file-sharing-and-fair-use/#comment-50 krisnelson Tue, 23 Jun 2009 20:24:02 +0000 http://www.inpropriapersona.com/?p=571#comment-50 Peter, Glad you brought up these points. It is especially critical for people to remember that "commercial" use is not dispositive on the question of fair use - just because you are not selling something does not make the use "fair." In terms of your another of your points, however, I wonder if it is not more complicated. Recording a television episode on a VCR or TiVo is generally considered fair use, and that does encompass the entire work. So "creativity" and transformation are not dispositive either, and merely because the whole of a song is downloaded for listening - the same purpose as most purchasers - does not automatically void the fair use argument. I do think there is a core intuition by many, whatever the state of the law is, that non-commercial, personal use ought to generally be considered more "fair" than commercial use. Perhaps this comes from a sense of personal autonomy and freedom, or perhaps from selfishness, but I think it's pretty common. Of course, common intuition this does not determine the legal position, but it informs and shapes it, I think. Still, I doubt with the state of the law as it is that filesharing will be deemed fair use by the courts for similar reasons to those you have articulated. Nonetheless, I find the idea of file sharing as fair use a provocative one: what would be the impact on business and behaviour if even limited file sharing were considered fair use? What would be the impact? Would there actually be a net benefit to society? (IP is supposed to be a balance between creation and dissemination, after all.) Thanks for your comment! Kris Peter,

Glad you brought up these points. It is especially critical for people to remember that “commercial” use is not dispositive on the question of fair use – just because you are not selling something does not make the use “fair.”

In terms of your another of your points, however, I wonder if it is not more complicated. Recording a television episode on a VCR or TiVo is generally considered fair use, and that does encompass the entire work. So “creativity” and transformation are not dispositive either, and merely because the whole of a song is downloaded for listening – the same purpose as most purchasers – does not automatically void the fair use argument.

I do think there is a core intuition by many, whatever the state of the law is, that non-commercial, personal use ought to generally be considered more “fair” than commercial use. Perhaps this comes from a sense of personal autonomy and freedom, or perhaps from selfishness, but I think it’s pretty common. Of course, common intuition this does not determine the legal position, but it informs and shapes it, I think.

Still, I doubt with the state of the law as it is that filesharing will be deemed fair use by the courts for similar reasons to those you have articulated.

Nonetheless, I find the idea of file sharing as fair use a provocative one: what would be the impact on business and behaviour if even limited file sharing were considered fair use? What would be the impact? Would there actually be a net benefit to society? (IP is supposed to be a balance between creation and dissemination, after all.)

Thanks for your comment!

Kris

]]> By: Peter Friedman /file-sharing-and-fair-use/#comment-49 Peter Friedman Tue, 23 Jun 2009 13:47:13 +0000 http://www.inpropriapersona.com/?p=571#comment-49 The court is "accepting" the argument in the sense the lawyer is making it. The consensus among even those who believe in a broad view of fair use (including me), is that the argument is almost a certain loser. The purpose of the use is precisely that of a purchaser of the music: to listen to it. It's not as if the user is "transforming" the music in any way. The nature of the copyrighted work -- creative -- is at the core of what copyright protects. Entire songs are downloaded. And while someone might argue she wouldn't listen to the song unless she downloaded it, you're right -- the cumulative effect of downloading might have an impact on the commercial market. At any even, no one of the four factors is dispositive, and there is no "exception" for non-commercial use of copyrighted materials. The court is “accepting” the argument in the sense the lawyer is making it. The consensus among even those who believe in a broad view of fair use (including me), is that the argument is almost a certain loser. The purpose of the use is precisely that of a purchaser of the music: to listen to it. It’s not as if the user is “transforming” the music in any way. The nature of the copyrighted work — creative — is at the core of what copyright protects. Entire songs are downloaded. And while someone might argue she wouldn’t listen to the song unless she downloaded it, you’re right — the cumulative effect of downloading might have an impact on the commercial market. At any even, no one of the four factors is dispositive, and there is no “exception” for non-commercial use of copyrighted materials.

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