Wholesale copying of music on P2P networks is fair use. Statutory damages can't be applied to P2P users. File-swapping results in no provable harm to rightsholders.

These are just some of the assertions that Harvard Law professor Charles Nesson made last week in his defense of accused file-swapper Joel Tenenbaum. In court filings, Nesson spelled out his defense strategy, which doesn't appear to involve claims that his client "didn't do it." Instead, Nesson argues that it doesn't matter if Tenenbaum copied music; such noncommercial uses are presumptively "fair" and anyone seeking to squeeze file-swappers for statutory damages is entitled to precisely zero dollars.

The strategy certainly doesn't lack for boldness. In making the case that statutory damages only apply to commercial infringers, Nesson says that his reading of the law is "constitutionally compelled." His most interesting argument is that the law offers rightsholders the chance to seek either statutory or actual damages, but that the two are meant to be equivalent.

"It would be a bizarre statute indeed that offered two completely unrelated remedies," he writes, "one which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month."

If the two remedies are equivalent, and if "individual noncommercial copying results in no provable actual harm to the copyright harm holder," then actual damages would be zero—and so would statutory damages. "In this context, it would be unreasonable to consider the $150,000 per infringement authorized [by the law] as an appropriate substitute for the zero actual damages."

(The recording industry has not sought $150,000 per infringement in any case, and the statute actually allows a spread that begins at $750 per infringement. In the Jammie Thomas trial, a jury settled on an amount close to $10,000 per song.)

It's all fair use

In any event, all of this statutory damages talk doesn't matter, because Nesson claims that Tenenbaum's use of the songs at issue here was "fair use" and thus not an infringement at all. It's a gutsy move to claim that wholesale downloads of complete copyrighted works for no purpose higher than mere enjoyment of music somehow satisfies the famous "four factor test" for fair use claims, but Nesson believes he can win over a jury.

"Defendant Tenenbaum expects and plans to offer the jury evidence relating to each one of these four factors," Nesson wrote in his court filing, "just as they are articulated in the statute, with the jury to decide their meaning as they apply to the facts of his particular case."

Nesson has been floating this idea to his supporters for some time, but the reception has been frosty. Lawyers like Lawrence Lessig, a huge fan of "free culture," remixing, mashups, and reduced copyright protections, wrote in an e-mail to Nesson that "of course [Tenenbaum's conduct] was against the law, and you do the law too much kindness by trying to pretend (or stretch) 'fair use' excuses what he did. It doesn't."

And Terry Fisher, who heads Harvard's Berkman Center for Internet & Society and is an expert on fair use, pointed out that P2P filesharing would likely fail the four factors test. "This is not to suggest, of course, that it's sensible for the legal system to be set up in such a way as to enable and encourage the RIAA to go after people like Joel," he wrote. "I devoted much of a book to arguing that it’s not—and I'm happy to testify to that effect. But the fair use doctrine does not, in my view, provide a plausible vehicle for reform."

But last week's court filings indicate that this is precisely how Nesson intends to argue the case. As for the "four factors," he plans to address them... but also to go far beyond them. Nesson will introduce "other factors" that the jury should consider in the case, which include "the copyright holder's knowledge of and assumption of risk when it published the copyrighted work that work would be ripped and shared on P2P networks."

Should Nesson win, he will essentially legalize the sharing of all digital goods, copyrighted or not, by noncommercial users. Given that he wants to make the case about big principles like fair use and the applicability of statutory damages—and not about whether Joel Tenenbaum did what he is accused of doing—the music industry is likely to fight even harder to ensure that Nesson's preferred outcome is not realized. The fireworks are scheduled to begin this summer in Massachusetts federal court.