A bunch of folks have been sending in the story about Charles Nesson’s plans in the Tenenbaum case to try a “fair use” defense, claiming that even if Tenenbaum shared content, it was fair use. There didn’t seem to be much to comment on it, as this argument was ably dismantled last month by Nesson’s own expert witness list. However, since he’s going forward with it, I’ll add my voice to the chorus of voices who all point out that this seems extremely unlikely to succeed. Even if you believe file sharing should be fair use, it’s hard to see how the law would agree, as is currently written (and given other court decisions). In fact, if you want to argue that file sharing isn’t a violation of copyright law, I think Nesson would be better off following Andrew Bridge’s assertion that if you read copyright law literally, it only applies to material objects, not digital ones (seriously, go read the post to get the details). Unfortunately, again, the courts have traditionally ignored that argument entirely. The original claims by Nesson for Tenenbaum, about the unconstitutionality of the statutory fines, was an interesting argument that seemed to at least have some basis in law (though, even then, the chances of winning seemed slim). To argue that file sharing somehow is fair use just seems like an incredibly unlikely position to win, and pushing that argument will likely create a ruling that sets a dangerous precedent around fair use.

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