Until the time when the recording industry started to offer individual songs in a freely transferable digital format, the law should consider it to have been fair use for a consumer to download freely transferable music files peer-to-peer.
Judge Gertner herself envisioned such a consumer “fair- use”, opining that consumers using Napster to download copyrighted songs might have a viable fair-use defense to copyright infringement for downloading and sharing that took place before the recording industry made its songs available online. As she put it in her summary judgment ruling against Tenenbaum, “The Court can also envision a fair use defense for a defendant who shared files during a period of time before … paid outlets were readily available.” But paid outlets of what?
Ignoring the usability of the industry’s products in comparison to products available to the consumer peer-to-peer means ignoring the deepest questions raised by the “fair use” doctrine in the context of the online environment: Who does the “fair use” serve? What is the “fairness” contemplated? From what point of view is that fairness to be judged? If fair use is to be judged from the industry’s perspective only, then the permission or lack of it from the copyright holder is all that counts. From the point of view of the industry, failure to offer online availability should not matter as long as the songs could be purchased on CD’s in record stores. Whatever the industry offers, whether physical or digital, whether in stores or online, is what the consumer must take, regardless of how much more usable the available peer-to-peer online product may be.
But if fair use is to be judged from the user’s perspective, then making use of a new, superior form of music product – downloadable, fully transferrable music files – while there was nothing comparable available on the market, can easily be seen as a fair use.
The recording industry made equivalent products available in 2007, when Amazon began offering songs for sale in freely transferable form. From that time forward, a consumer’s fair-use defense to infringement would no longer be viable. Marking this line would provide a principled and clear end to the interregnum. It would leave the recording industry with the benefit of the attitude change that its litigation campaign has effectuated, yet relieve the digital generation of undeserved guilt that has been heaped upon it, and remove the legal system from the position of forcing an inferior product on the consuming public.