P2P filesharing seen as “fair use”

There are a lot of different arguments used by people brought to court by the RIAA and other entertainment trade groups in order to come out victorious. In the majority of cases they lose and the RIAA get’s to brag a little longer about how they are out their protecting the rights of musicians.

I’ll wait until you pick yourself up from the floor after the laughing fit that statement prompted.

All better know? good because there is a very interesting defense being put forward in the case of accused file-swapper Joel Tenenbaum. It would seen that well respected Harvard Law professor Charles Nesson will argue that what Tenenbaum did falls squarely within “fair use” and therefore he isn’t liable for any purported damages. Nesson claims that downloading of copyrighted works nor no other purpose than personal enjoyment satisfies the famous “four factor test” for fair use claims.

Those four factors according to Stanford University Library are

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

While some of Nesson’s equals consider this stretching the fair use clause a bit too far he believes he can convince a jury otherwise

“Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors,” Nesson wrote in his court filing, “just as they are articulated in the statute, with the jury to decide their meaning as they apply to the facts of his particular case.”

Source: Ars Technica

We’ll have to wait until this summer sometime for the case to start in a Massachusetts federal court to see if this rather unique defense will survive.