Harvard professor says downloading is 'fair use'

Downloading music without the permission of the copyright holder should qualify for copyright laws' exemptions for 'fair use', a Harvard academic has said. Partial responsibility lies with the music industry itself for failing to adapt, he said.

Harvard law professor Charles Nesson is defending Joel Tenenbaum, a 25-year-old American charged by record label Sony BMG and others with copyright infringement over his alleged downloading of music from peer-to-peer (P2P) file-sharing networks.

Nesson and a team of Harvard law students are working on Tenenbaum's defence. Such a defence is relatively unusual since many people accused by labels and the industry body the Recording Industry Association of America (RIAA) pay thousands of dollars on demand to settle potential suits.

In filings to the US District Court for the District of Massachusetts Nesson says that in order for the labels to be successful they must prove that Tenenbaum's use of the material was unfair.

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"Fairness borders copyright infringement," said Nesson in his submission. Proving that the defendant infringed entails proving that his copying was not fair … the issue of the fairness of the defendant's use is integral to the decision the jury must make as to whether the defendant's actions were infringements."

Nesson said that the concept of 'fairness' was flexible. "Fairness is a standard, not a rule. Fairness is not legally defined as a rule. No simple definition of fair use can be fashioned, no bright line test exists," he said.

Nesson said that in the US fair use emerged in the 19th century through court rulings and became a clearer right throughout the 20th century, until it was codified in a 1976 overhaul of copyright law.

He said that that 1976 law laid out four factors which will determine whether a fair use exemption applies. These are: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.