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Harvard professor offers new challenge to RIAA antipiracy campaign

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

October 30, 2008 12:00 PM ET

Computerworld - 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.



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