Oh dear. From the one lecture of his that I attended, I knew that Charlie Nesson had some unconventional ideas, but this is a bit excessive. (You know you should be worried when Lawrence Lessig dismisses your fair use argument.)
The student he is representing should be worried that all this showmanship is angering the judge, who would then give less credence to legitimate arguments.
One of the most distasteful aspects of legal practice is that most legal arguments take the form of factual statements (or at least claims of fact), but the factual content of the speech is secondary to the effects it's hoped to have (on its listeners).
So put yourself in Nesson's shoes; he's doing this case pro-bono, and therefore has no real worried about being paid for his time. Thus, Nesson has no incentive to artificially shorten the length of his defense (out of concern for working longer than his client can afford).
Nesson also wants to win this case.
So you've got someone for whom: time is no real object, and winning is a goal.
In that circumstance, what's the harm in trying a "fair use" defense? It probably won't fly, but it's one more thing to try, and one more thing for the plaintiff to have to argue against (thereby further draining plaintiff's resources, because plaintiff is paying for their representation's time here).
It's not entirely harmless, sure -- a few too many wild conjectures and Nesson's credibility in court may be somewhat tarnished (though, even there, keep in mind Nesson's (1) something of a legend and (2) already known as a loose cannon, so compared to a run of the mill attorney the impact of one or two wild arguments on his in-courtroom credibility is harder to calculate) -- but it's one more thing that might work and it's one more way to try and exhaust the plaintiff's will to proceed (and I guarantee you this is not the only line of defense Nesson's got).
So, regardless of whether (1) Nesson thinks file-sharing is actually fair use and (2) Nesson thinks he can convince anyone else file-sharing is actually fair use (note: (2) is independent of (1)) it's possible to reverse-engineer the thinking that might make the risk/reward calculation on advancing this line of argument look promising.
But, due to the practical constraints of legal speech, you'll never see any of these statements:
- your honor, I personally don't think file sharing is fair use and I actually don't think I'll be able to convince anyone else in this courtroom that filesharing is fair use, but in the interest of exhausting my opponents with every hare-brained scheme I can conceive I'm going to spend a couple days arguing the point. Let's proceed.
- your honor, I personally think file sharing is fair use and am savvy enough to understand I won't convince anyone here of that via any amount of argumentation, but I am cocksure enough of my argumentative abilities that I won't say anything so immediately laughable that all y'all will be hard-pressed to give a reasoned explanation for why you should shut this line of argumentation down prematurely so you should plan on hearing me out over the next several days.
...or anything similarly candid, ever. Instead, you'll just hear something like what you've heard, which is a straight-faced assertion with no qualifications or caveats; it might be more honest to give a statement like one of the impossible statements above, but giving the statement such a form would be self-defeating in light of the intended effect of making any such statement.
And, having read his blog post that was referenced in the linked article, this sounds about right.
Strategy-to-win is step 1: get a jury trial going.
Step 2: build an argument that the notion of "fair use" is one of those constitutional notions that can be inferred from the constitution even when not mentioned explicitly (eg some notion of privacy being inferred from 4th amendment, etc.)
Step 3: argue that stuff like the "4 factors" test are not definitive but merely illustrative -- they serve to illustrate the considerations that one ought to consider when making a judgement of fair use, but do not define the notion of fair use, which is inferred directly from the constitution and thus precedes any later developments like "4 factors"
Step 4: argue that b/c "fair use" is an affirmative defense (meaning, a defense you can make when you're brought to trial, as opposed to an explicit grant of rights to the "fair user") the meaning of fair use is always and everywhere up to a specific jury in a specific case to decide. Remind jury of step 3 (that stuff like 4 factors is actually only illustrative and not definitive) and that at the end of the day whether or not the defendant is making "fair use" is entirely up to the jury and the jury's conscience.
Step 5: argue from conscience that there's no way the current set of file-sharing penalties are in any sense "fair", and again remind that it is ultimately the jury's responsibility to make a decision as to what is or is not "fair use" and thereby ensure fairness.
This is a better strategy than it sounds in summary, though it only stands a chance of working if Nesson's hopes for a hollywood-type free-ranging trial come about; the threat of such a thing may be all he needs to get this case to settle, which counts as a win for his client, even if it's a sub-optimal way to win for Nesson himself.
The argument for "illustrativeness" is genius if fully developed; it's basically an attempt to transform the restrictions on the grant of authority to Congress to institute copyright and patent laws ("to promote the progress of science and useful arts") from dead letters to the source of a notion of "fair use":
- on the one hand, if such-and-such a use is shown to promote the progress of science and useful arts then laws restricting such a use require scrutiny (to ensure the net effect of the restriction balances out to promotion of progress of science and useful arts)
- on the other hand, if a restriction on a particular use does nothing to promote science or useful arts, then it's perhaps consitutional
...and in this picture the "4 factor" test would just be a useful set of guidelines for determining when a law-as-written is unconstitutional as applied to a particular set of circumstances.
It's also clever for its effect on the judiciary: Nesson's hardest targets there will hail from the right-wing, who typically lean towards strict constructionism (supposedly, only considering the raw language of some law) or an originalist (supposedly only considering the original intent of the writers of some law). However, it'd be difficult for either of those two schools to straightfacedly argue that the constitutional language about the "progress of science and useful arts" is just decorative fluff -- it'd put them in the position of having to argue that "yes, that language does mean something, we just disagree about what", which is in-and-of-itself a huge win.
And, secondly, if he can get this to a jury all he has to do is get done with steps 2 and 3 and then he's converted the trial from a nitpicky study of specific statutes to a general debate on "fairness", and then he's on much stronger ground.
He could, from there, abstract from the specifics of the case at hand to arguing that from the position of someone who isn't that familiar with the law -- eg, a 10 y/o -- it literally would make no sense for copying a cd for a friend or downloading something from the internet to carry fines in the 6 figure range, using argumentation along the following:
- tv ads for isps are always emphasizing download speeds for downloading music and movies etc. and sending files, etc.
- tv ads for computers always talk about how easy it is to send files or burn cds and dvds, etc.
- blank cds and dvds are available at supermarkets and 7-11 and all that
- stuff like ipods or cellphones with music capacity are source-agnostic; even with the itunes store it doesn't stop you from loading mp3s from elsewhere
- youtube, etc is full of music videos and so on, often with hundreds of thousands of views and not uploaded by anyone "official"
- tv and radio and internet radio stream free content over the air and it's legal to record it
- school projects often involve xeroxing stuff and making collages and so on
- there's libraries (run by the government) that loan stuff out for free, it's fine to let friends borrow stuff, and if you're going to loan to friends it's more convenient to just burn a copy than actually loan the disc
...but then wtf? I downloaded some tunes and now my parents are being sued for $150k+?
It's not an airtight argument, but on grounds of pure fairness it's not unconvincing.
I doubt Nesson'll get his day in court to argue this line of reasoning -- and if he does it'll probably be shut down earlier rather than later -- but the apparent strategy (once fleshed-out) is an inspired mix both of legal interpretation and lawyerly strategy.
Excusing peer-to-peer file-sharing because it falls under the nebulous cloud of "non-commercial" use seems ridiculous. Espousing a social-contract model for copyright doesn't suddenly mean that only the end-users get to dictate the terms of the contract.
What do you mean, "espousing a social-contract model" ? The authority to create a copyright law is explicity granted in the US Constitution for the precise purpose of a greater social good, "to promote the useful Arts and Sciences". So there is a contract there - congress is allowed to make copyright laws, but the rest of society gets promotion of the useful arts and sciences.
It's not an accidental addition; in Europe, copyrights and patents and other monopolies were handed out by Kings to reward friends, often with disregard to who the inventors and authors were. Our system gives the copyrights and patents to the authors and inventors, and it has to be for a limited time, and if the system does not promote the useful arts and sciences but instead a form of welfare or subsidy of certain interests, then you have to find authority to do it under some other part of law; it may in fact be unconstitutional.
Also, I find your remark about "doesn't mean that only the end-users get to dictate the terms of the contract" silly. Of course you realize like any literate person that a contract is a "meeting of the minds", that neither party gets to dictate the terms, but both parties have veto power and can not sign on.
I am on both sides of the contract, as a person who writes copyrighted computer code, and a person like the rest of the US who is restricted in copying other people's copyrighted work. I don't see the contract as a good one, and I'm willing to scrap the whole thing if it cannot be modified.
There is little evidence that the current state of copyright is helping the economy, the "Useful Arts and Sciences", or society as a whole. Not only is there ample reason to exclude the non-commercial distribution from it, I would sign on for eliminating the whole of copyright and patent law, the entire Title 17 and 35 (I think) of the US Code. Allowing the free copying of anything in a non-commercial way is nice little experiment we could run for a couple of years, and if starving silicon valley workers aren't forced to resort to canibalism, we ought to can the rest of the system too.
I'm not alone in pointing out the system is not function to incease the economy; numerous smart people over the years have said the same thing. Fredrich Hayek, whose work is generally considered staunchly right-wing and pro-capitalism and etc, said as much in "The Road to Serfdom" in the 1940s.
"Seems to me to be an understandable principle that it's
okay to consume and share nonrivalrous [sic] good which are available on the net for free."
I keep hearing this argument that the owner of the original file does not lose anything if you copy it. Well, the owner of a banknote does not lose anything either if you make 10000 copies of it.
Both files and money have an abstract value, and copying dilutes the value, hence copying is forbidden.
But, that's the point. Things usually only have value based on scarcity, at least for luxury items.
The problem is that data is never a scarce resource. It's, for all practical purposes, inexhaustible. So trying to put a price on a collection of bits is virtually impossible using classical models.
So what you end up with is companies trying to recreate this 'scarcity' with encryption schemes and lockins and all manner of other protective measures. Which all inevitably fail, rendering the production cost of this new item extremely close to zero.
Now, some people argue that you must take development costs into account, lost sales, etcetera and then you end up straying into wild, untamed territory. After all, you don't see car companies suing the manufacturers of bicycles for taking away sales, or anything like that. But yet, when it comes to digital information, this seems to be par for the course.
And of course, the counter-argument to it is thus: If I make say, 1,000 copies of a game and keep all these copies on my hard drive, does that cost the company more? No.
But if I give these new copies that I made at my own expense (as little as that is) to my friends, this is somehow a transformative process and is treated as costing the IP owner profit (or increasing effective cost or somesuch).
It would probably serve better to just give up on this and focus on creating product in a way that follows traditional markets. Give away the music for free, it's only data. But make your revenue from shirts, concerts, etcetera.
A dollar is worth a dollar because a lot of people want it that way. Gold is "worth" 900USD because a lot of people want gold. But not too many people - otherwise the price would rise.
My point is that nothing has intrinsic value. The market parameters of supply, demand and prices are one way we assign value to things.
Even though his argument seems optimistic, hopefully he can reduce some of the crazy awards and "lost revenue" or perhaps expose some of the inadequacies in linking actual filesharing to a particular person.
The student he is representing should be worried that all this showmanship is angering the judge, who would then give less credence to legitimate arguments.