Latoicha Givens writes:

In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime.

via IP LAW 101: File Sharing & Fair Use: What does it mean for Consumers.

She goes through the four main “fair use” factors considered by judges. Stanford’s library has an overview of copyright and fair use which states the four as:

1. 1. the purpose and character of your use
2. 2. the nature of the copyrighted work
3. 3. the amount and substantiality of the portion taken, and
4. 4. the effect of the use upon the potential market.

via Measuring Fair Use: The Four Factors.

She points out that, if this argument is accepted, then at least limited file sharing would become legal:

If Tennebaum’s argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.

(Of course, if this were to occur, the lobbysts would be hard at work getting Congress to explictely eliminate such protection.)

Keep in mind, too, that although such an outcome might make file sharing acceptable in certain contexts, this would only be from the individual consumer level. Any ads, subscriptions might well take it out of this context. In other words, any money making might well doom a defendant’s fair use argument.

I suspect that even large-scale file sharing without commercial intent might go to item #4 above, too, making Napster or Bittorrent still illegal. Still, it would be an interesting outcome, and one that might well be a good outcome for consumers — and possibly even beneficial to labels, if it helps to advertise their work in non-commercial contexts.

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• Does Copyright Foster or Hinder Innovation? (inpropriapersona.com)
• Copyright as Antidote to DRM (inpropriapersona.com)
• Libraries and Fair Use (inpropriapersona.com)
• The Thomas file-sharing retrial (inpropriapersona.com)

The jury in the retrial of Ms. Jammie Thomas–Rasset deliberated only a few hours today before concluding that she had willfully infringed the copyrights of 24 songs and awarding $1.92 million in statutory damages ($80,000 per recording) to the record label plaintiffs. The verdict represents a huge increase over the $220,000 award in the original trial, which was overturned by the judge based on a faulty jury instruction pushed by the record labels.

via Record Labels’ $1.9 Million Win in Thomas Retrial Constitutional? | Electronic Frontier Foundation.

The EFF, in the article quoted above, questions whether such an award is even constitutional. I do not know enough about the arguments to have an answer on that, but I certainly have to doubt the real benefit to society of this kind of judgment — and I certainly question the level of actual damages.

But an interesting, if disturbing, point of data to add to the debate.

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• MUSIC PIRATES IN CANADA: American Publishers Say They Are Suffering by Copyright Violations There — Steps Taken for Redress (inpropriapersona.com)

Economists Felix Oberholzer-Gee and Koleman Strumpf have just released a new Harvard Business School working paper called File Sharing and Copyright that raises some important points about file sharing, copyright, and the net benefits to society.

via Michael Geist — Harvard Study Finds Weaker Copyright Protection Has Benefited Society.

Mike Masnick of Techdirt adds:

To understand the key points made by the paper, you need to understand the purpose of copyright — something that many people are confused about. It’s always been about creating incentives to create new works. Copyright maximalists and defenders of strengthening copyright laws always suggest that without copyright, there would be much less creative output, because there would be much less incentive to create. History has shown that to be false. If you look back at the age when all creative output had to be registered to be covered by copyright, studies showed that only a very small fraction of content creators even bothered, because copyright wasn’t the incentive. It’s only now, when copyright is automatic, that people seem to think that copyright is somehow necessary.

via Yet Another Study Shows That Weaker Copyright Benefits Everyone | Techdirt.

There are many who disagree, but the study appears to raise interesting issues regarding the benefit to society of copyright protections. As Mike Masnick writes above, copyright is about balancing benefits (incentives to create with the benefits of distribution). Thus, the United States Constitution, in granting to Congress the power to regulate patents and copyrights, says that the point is to

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

In other words, although we consider copyrights and patents to be property, it is property that functions differently than many conceptualize. It explicitly lasts “for limited times,” for example (although other forms of property also may be limited — law students learn early on that property is a “bundle of rights,” not some kind of absolute grant).

I am not convinced that eliminating copyright is the best approach, even if this study suggests that file sharing may actually benefit creators. Instead, I think perhaps a better balance of rights may be appropriate, and may even benefit creators (musicians, authors, etc.) over the current regime, which tends to benefit current owners of intellectual property (labels, publishers, etc.). But I remain open to exactly what that balance should look like, and studies like this help to provide evidence for which approaches might be better than others.