Harvard class takes Constitution-based run at RIAA

A Harvard Law School class led by the head of the school's Berkman Center for Internet and Society is pursuing a counterclaim against the RIAA after it targeted a Boston University graduate student for alleged illegal downloading.

Charles Nesson heads the Berkman Center, which celebrates its tenth anniversary this year. Students in his CyberOne class have taken up the cause of Joel Tenenbaum, who stands accused of downloading seven songs and making 816 "available for download."

The Recording Industry Association of America is operating more or less as usual in Sony v. Tenenbaum; it has rejected a settlement offer of $500 from Tenenbaum, and has deposed his sister and father. It's not uncommon for the RIAA to approach family members in these situations (to say nothing of ten-year-olds and grieving family members). What is less common is for the defendant's mother to be a practicing lawyer. Tenenbaum's mom, however, did not take up his case, and until Nesson's class stepped in he was essentially representing himself.

On Monday, the RIAA's motion for adjournment of the jury trial scheduled for December 1 was granted; on Tuesday, Gesson and his legal team filed his Notice of Constitutional Question, which clears the way for the defendant to challenge the case on constitutional grounds.

Specifically, Gesson advances four claims: He argues that the Copyright Act of 1976 and the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 authorize prosecutions which are "civil in form but criminal in nature," leaving defendants dealing with the lighter burden of civil-court proof in a criminal venue. In a related vein, Gesson states that the two Acts give private parties -- that would be the RIAA -- criminal-prosecution powers, and that such power allows the group to turn the courts into (highly inefficient) collection agencies.

Constitutionally speaking, Gesson argues that the Acts violate the Fifth and Eighth Amendments' due-process protections by mandating "grossly excessive" minimum statutory damages -- and permitting even larger maximums. (Readers will remember the case of Jammie Thomas, the first case of this sort to go clear through the trial process; the jury debated penalties ranging as high as $150,000 per track before somehow setting on a lower $9,250/song. The minimum fine, according to the statute, is $750/song.)

District Court Judge Nancy Gertner, who heard arguments concerning the case back in June, may not be entirely unsympathetic to the drama of David vs. the music-industry Goliath -- even if David's suddenly got a group of sharpshooters backing his play.

In that hearing, Gertner, who appears from the transcript to have helped to put Tenenbaum in touch with Nesson, noted that "there is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelming on their side.... It simply doesn't make sense to fight them as an individual, per se."

Gertner at that time also strongly criticized the lawyers representing the record companies for behaving perhaps less than ethically toward individuals served in their suits, and spoke of a reckoning yet for come for RIAA. "At a certain point," she said, "after 133 cases in my court and countless around the country, the plaintiffs are going to realize this is making no sense and making them look bad."

The CyberOne class takes an even dimmer view of the RIAA in a statement on its blog. "The plaintiffs and the RIAA are seeking to punish [Tenenbaum] beyond any rational measure of the damage he allegedly caused," the group writes. "They do this, not for the purpose of recovering compensation for actual damage caused by Joel's individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future."

In other education-vs.-RIAA news, the governor of Tennessee signed into law last week a bill that would require the state's colleges and universities to "reasonably attempt to prevent the infringement of copyrighted works over the institution's computer and network resources, if such institution receives fifty (50) or more legally valid notices of infringement as prescribed by the Digital Millennium Copyright Act of 1998 within the preceding year." (PDF available here)

In other words, if any school receives more than 50 notices from the RIAA accusing a residential student of downloading music illegally, the school will be required to filter its traffic -- paying for the hardware, software, and personnel required to do so. It's estimated that the new rules will cost the state $9.5 million to implement, with annual ongoing costs of $1.5 million every year.

In a statement Monday, the Electronic Frontier Foundation's Richard Esguerra wrote, "It makes no sense to force universities to spend millions on technologies that will hobble innovation on campus while failing to stop file-sharing. Why not use those millions to compensate creators and copyright owners, and thereby make file-sharing legal, instead? Now, more than ever, the universities need to come forward with a collective licensing proposal that will protect their campus communities and their own bottom lines."

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