File sharing and “fair use”

Please note that this post is from 2009. Evaluate with care and in light of later events.

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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