Prof. mounts constitutional counterattack to RIAA claims
November 17, 2008
Let me say I never once illegally downloaded songs or videos when I was in college. Let me also say I’m glad not to be under oath right now.
However, if neither one of those things were the case, I’d be happy to have Charles Nesson on my side. Nesson, a Harvard Law School professor, has come to the aide of Joel Tenenbaum, a 24-year-old Boston University student who’s being sued by the Recording Industry Association of America for downloading at “least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004.”
They want $12,000. Yeah, that sounds fair.
According to an AP story, of the more than 30,000 RIAA complaints issued, only one has gone to trial — “nearly everyone else settled out of court to avoid damages and limit the attorney fees and legal costs that escalate over time.”
Nesson is hoping to stop the RIAA by challenging the constitutionality of the law it’s using to bash people about the neck and shoulders.
Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the Recording Industry Association of America, or RIAA - carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.
Nesson, the founder of Harvard’s Berkman Center for Internet and Society, said in an interview that his goal is to “turn the courts away from allowing themselves to be used like a low-grade collection agency.”
Now I have no idea whether this will work, but I do think it’s an interesting tactic. Any lawyer out there have an opinion on the merits of Nesson’s position?
(In the interest of full disclosure: Entertainment attorney Jay Cooper, who is quoted in the piece and who specializes in music and copyright issues, works for the same law firm as my father, though in a different field of law and on a different coast.)
JOE BACCHUS, Web Specialist
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I have never understood why so many people seem to think that the stealing of intellectual property stored in an electronic medium is “ok.” If these same people entered a store and stole a CD, most people would agree that it’s “wrong.”
I don’t know the details of the law(s) that the RIAA is using to pursue these people. But, superficially, it doesn’t really seem that different from a qui tam statute.