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. 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.
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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I'm a PhD student in the history of science, focusing on intellectual property and other law & technology issues. I'm also a recent law school graduate and a former developer/sysadmin at a biotech non-profit. For more about me and my work, see 
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Kristopher Nelson
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.
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