“Expert” is only a name; an “expert’s” ideas are only as good as the ideas themselves.

This is the honest truth: back when the Napster case was pending on appeal (the appeal Napster would eventually lose), I was teaching a legal writing class and the problem was about copyright and fair use in connection with a web site that used posted exerpts of copyrighted works and also an online “bulletin board” (it was that long ago) for discussion of the works. I told my class that I thought that if the music industry had any sense they’d put significant excerpts of every work in their catalogs in streaming audio next to a button that would allow electronic download of an mp3 file of each song for a price.

I bring this up not to boast that I am some brilliant businessperson who would’ve wisely been picked up by Apple to help produce iTunes. I have no doubt I’d read the idea a hundred different places and that it sounded good to me. So why do I bring it up?

The students reacted this way: it’s a stupid idea; if it weren’t, the music companies would’ve done it already. What would I know that they don’t? I was left almost speechless. I asked them if they really believe that people who do things necessarily know what’s best with respect to doing those things. They apparently did. I told them I thought that it was very important that they learn that just because an “expert” thinks certain things about his area of expertise doesn’t mean that a non-expert can’t have better ideas, and that it certainly isn’t the case that an entire industry necessarily does business in the best way it could.

I was reminded of all this when I read at Ars Technica that “Geoff Taylor, head of UK major label trade group BPI, wrote an op-ed piece for the BBC today in which he called Napster the ‘Rosetta Stone of digital music,’ said it was ’simple to understand and use,’ and said that the music industry should have ‘embraced Napster rather than fighting it.’”

Is peer-to-peer music downloading fair use? I doubt it.

In defending an individual against liability for downloading music via peer-to-peer networks, Harvard Law Professor Charles Nesson apparently is going to argue that his client’s activities constitute fair use of the copyrighted music. His arguments don’t seem terribly persuasive to his peers, and I confess that it is not clear to me at all what his argument is. Ars Technica even asks, “Is Harvard Law professor Charlie Nesson crazy?”

Nesson seems likely to argue that there is no remedy for non-commercial music downloading in the absence of proof of actual economic harm. If that is the basis of his argument for fair use, at least it makes some sense (even if it seems unlikely to prevail). 

More effective, perhaps, will be Nesson’s efforts to convince the court that a jury should decide his client’s fate. As he explains:

 Fair use is recognized as a common law, perhaps a constitutional concept, not defined by but merely recognized and continued by the statute (Sony, Harper); that the statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and the question is a jury issue. 

But I’m not sure he’s entirely right about that. Both an influential treatise (4-13 Nimmer on Copyright Section 13.05, n. 17) and the courts suggest that whether certain acts constitute fair use is a “mixed question of law and fact.” A question of law is one a judge determines; a question of fact is one a jury determines. A mixed question of law and fact is one in which a jury determines what happened, and the judge determines the legal effect of those facts. See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986)  I’m not sure how Nesson is going to persuade jurors who might be sympathetic to his client to find the historical facts he needs to convince the court his client’s music downloading was fair use.

Lessig on Copyright Law: 5 ways to improve it.

Starting his article with an account of the silliness Universal Music Group visited upon Stephanie Lenz, Lawrence Lessig makes a compelling case that the existing regime of copyright laws subverts its very purposes — motivating creativity. Accordingly, Lessig proposes the following revisions to our laws:

1. “Where the creativity is an amateur remix, the law should leave it alone. It should deregulate amateur remix.”

2. “Deregulate ‘the copy:’ Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a “copy,” that makes as much sense as regulating breathing. The law should also give up its obsession with “the copy,” and focus instead on uses — like public distributions of copyrighted work — that connect directly to the economic incentive copyright law was intended to foster.”

3. “Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now.”

4. Restore efficiency: “[W]e should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term.”

5. “Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop ’sharing.’”