Harvard professor says downloading is 'fair use'

"Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors, 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," wrote Nesson.

Nesson said that other factors would also be relevant to Tenenbaum's case of fair use, including the fact that the music industry has not adapted to the internet.

"Defendant Tenenbaum expects and plans as well to offer the jury evidence relating other factors that bear on the jury’s assessment of whether the defendant's actions in their context were unfair. Such will include the copyright holder’s knowledge of and assumption of risk when it published the copyrighted work that the work would be ripped and shared on p2p networks; the copyright holder's delay in providing alternatives to p2p downloading, thus creating an environment in which even the RIAA concluded that suits against p2p downloaders would be unfair until such alternatives existed; the defendant's history of buying music and of copying music from one format to another; the availability and the defendant’s knowledge and understanding of the availability at the time of his alleged actions of alternatives to p2p downloading; the defendant’s actual use of the copyrighted works; and the messages of the allegedly downloaded songs and artists."

In a separate filing in response to the US Department of Justice in relation to the case, Nesson argued that statutory copyright damages, which can run to thousands of dollars per song downloaded, should not apply in non-commercial cases.

Because actual damages are zero, he argued, the statutory damages should also be zero.

"It would be a bizarre statute indeed that offered two completely unrelated remedies within the same section: we imagine, for example, that the Court would be baffled by a statute that granted a plaintiff the choice between two remedies, one of which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month," he said.