File Sharing & Fair Use: What does it mean for Consumers

Hello!

I hope your week has been productive.

I came across this article on the Daily Online Examiner, which gives an update on the Napster File Sharing Litigation. As many of you know, the Recording Industry Association of America (RIAA) waged a legal battle against Napster and users of file-sharing services for the past 10 years. However, one of those cases can effectively end the RIAA argument that file-sharing is copyright infringement and therefore punishable by a fine and or jail time.

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. I will explain Fair Use in more detail below:

Copyright Infringement occurs when another unlawfully copies, sells, displays or performs a copyright owner's work without their express permission. However, in some instances, copying a copyright owner's work without their permission is allowed. This is called the Fair Use exception. Specifically, an infringer of a copyright can argue Fair Use if they meet one of the following criteria:

1. the purpose and character of the use is for non-profit or non-commercial purposes;
2. the nature of the copyrighted work is artistic and benefits the public;
3. the amount and substantiality of the portion of the copy is minimal in relation to the copyrighted work as a whole; and
4. the effect of the copying upon the potential market for or value of the copyrighted work is minimal.

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.

It will be interesting to see how the judge rules this case. I will keep you posted.

I welcome your thoughts!