Harvard professor offers new challenge to RIAA antipiracy campaign

Nesson claims Digital Theft Act, on which RIAA lawsuits are based, is unconstitutional

A Harvard law professor has opened a new front in the battle between the Recording Industry Association of America (RIAA) and alleged music pirates by challenging the constitutionality of a statute being used by the industry group to bring lawsuits against alleged copyright violators.

The case involves an individual named Joel Tenenbaum, who was sued by the RIAA for allegedly illegally copying and distributing copyrighted songs belonging to several music labels. The lawsuit was filed in U.S. District Court in Boston in August 2007 after what the music labels claimed was more than two years of effort trying to get Tenenbaum to accept a settlement involving an undisclosed amount.

The music labels claimed to have discovered more than 800 copyrighted songs stored on a shared folder in Tenenbaum's computer, though only seven of those songs are specified in the case.

Harvard Law School professor Charles Nesson this week filed a counterclaim on behalf of Tenenbaum, challenging both the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 and the music labels' use of it against Tenenbaum. The claim is notable because it is broader than previous challenges related to the constitutionality of the RIAA's antipiracy campaign.

Nesson's move adds to the growing number of challenges being thrown at the RIAA's campaign from several quarters. Most of the recent ones have focused on the industry group's use of a company called MediaSentry Inc. to gather evidence against alleged copyright violators. Several groups, including the Massachusetts State Police, Oregon's attorney general and Central Michigan University in Mount Pleasant, have called MediaSentry an unlicensed private investigator that is unlawfully collecting information on behalf of the RIAA.

In his motion, Nesson argued that the statute was essentially a criminal statute, and that it was unconstitutional to apply the law to prosecute a civil case in federal court, which is where previous RIAA lawsuits have been argued. He sought damages on behalf of Tenenbaum for what he claimed was the RIAA's abuse of process in pursuing the case.

He also challenged the constitutionality of the steep penalties for copyright violations that are provided under the act. The penalties range from $750 to $30,000 per infringement, with a maximum of $150,000 for certain willful violations. Last year, Jammie Thomas was ordered by a federal jury in Duluth, Minn., to pay $220,000 to six music companies for illegally downloading and sharing copyrighted music over a peer-to-peer network.

Nesson argued that such fines are "grossly excessive" and far beyond the rational measure of any financial damage that may have been caused by Tenenbaum's alleged piracy.

Nesson contended that with the law, Congress has placed the power to prosecute an essentially criminal statute in the hands of private entities such as the RIAA instead of the courts. He argued the statute has given the RIAA "unbridled discretion" to sue millions of individuals such as Tenenbaum and to threaten them with expensive and time-consuming litigation if they dare challenge it. He argued that any individual prosecuted under the act is entitled to the protections of criminal law and procedure.

"This is an unconstitutional delegation by Congress of executive prosecutorial powers to private hands," Nesson wrote in his brief.

The issues raised by Nesson are broader than previous challenges, which have tended to focus on the constitutionality of the statutory fines provided under the copyright act.

Speaking with Computerworld, Nesson said that he was motivated to fight on Tenenbaum's behalf because of his own concerns about the RIAA's tactics in its antipiracy crusade. He noted that Tenenbaum had initially offered $500 to the RIAA for his alleged violations, but that the group refused the offer and instead has been systematically attempting to "shake him down" for more money.

"They have been pursuing him with every form of federal and civil process they can manage," while pushing up the "shakedown" price each time, Nesson said. He argued that the RIAA's real interest in pursuing Tenenbaum was to make an example of him and to intimidate other Internet users in a similar situation into settling without having their rights heard in court.

"What we are challenging is the creation of a private police force that is empowered to give out million-dollar tickets and to use the federal courts as their collection agencies," Nesson said.

How successful such arguments will be is unknown. The RIAA has already filed a motion seeking to dismiss the counterclaim. When asked for comment, an RIAA spokeswoman pointed to the motion saying, "We are going to let our motion to dismiss speak for itself."

The RIAA's motion argues that Nesson's counterclaims fail to state specific claims upon which relief should be granted. For example, the abuse of process claim is not substantiated by any specific examples of that abuse, the motion said.

"Indeed, Defendant's allegations amount to little more than a complaint about difficulties associated with being a defendant in a lawsuit," the RIAA motion said. "These complaints do not support a legal claim for abuse of process." The motion also argued that the RIAA's conduct in pursuing copyright infringers is protected under First Amendment rights.

The closest a court has come to expressing an opinion on the constitutionality of the RIAA's use of statutory penalties occurred in September when a federal judge in Minnesota overturned the $222,000 jury award against Thomas. In that case, the judge threw out the verdict on procedural grounds, saying that he had failed to give the jury proper instructions about a key matter in the case. However, in his ruling, federal Judge Michael Davis questioned the "oppressive" size of the penalties while urging Congress to reconsider them.

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