Harvard professor offers new challenge to RIAA antipiracy campaign

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.