A professor and students from Harvard Law School have taken issue with the Recording Industry Association of America's (RIAA) campaign against illegal file sharing and filed a counterclaim on behalf of a Boston University student.
The RIAA is suing Joel Tenenbaum, a graduate student at BU, for illegally downloading and sharing music. The damages in the case could amount to over $1 million. Harvard Professor Charles Nesson and a group of students have fired back on Tenenbaum's behalf, disputing the constitutionality of a federal law that has permitted the RIAA to target thousands of music sharers over the past five years.
If successful, the counterclaim could put a dent in the industry's aggressive campaign, which is responsible for multi-thousand-dollar settlements with approximately 30,000 people accused of illegally sharing copyright-protected music.
Nesson, the founder of Harvard's Berkman Center for Internet and Society, argues that the RIAA has been intimidating Internet users by threatening them with unfair legal challenges. It has been doing this, he says, by abusing a federal copyright law, the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.
He said that the RIAA and the music groups it represents use the courts to coerce people into settling for thousands of dollars to avoid a lengthy and potentially costly legal process. "They turn the United States civil courts into their own collection agency [and] threaten anyone with a million dollars," Nesson told the Daily.
The RIAA has charged Tenenbaum, a 24-year-old who is pursuing a Ph.D. in physics, with illegally downloading seven songs and making hundreds more available to other users on the Kazaa peer-to-peer file-sharing network in 2004. Tenenbaum's counterclaim, filed in Boston's U.S. district court, is scheduled to go to trial on Dec. 1.
Federal law permits the industry to seek damages of between $750 and $150,000 for each file shared, depending on whether the infringement is determined to be willful. Tenenbaum stands accused of knowingly sharing the songs, and faces the prospect of having to pay $1,050,000 overall.
Tenenbaum said the RIAA wants to make an example out of him. "They want to make me an urban legend, you know, that kid who had to pay tons and tons of money, to kind of frighten people away from this stuff," Tenenbaum told the Daily.
Of the tens of thousands of complaints the RIAA has filed in the past, only one has gone to trial. In that case, a Minnesota woman was originally fined $220,000 for downloading 24 songs but was later granted a new trial, according to the Boston Globe. The RIAA has particularly focused on college students in sending pre-litigation settlement letters, a number of which have reached Tufts students. These letters offer the prospect of settling out of court in order to avoid trial.
RIAA spokeswoman Liz Kennedy told the Daily that the industry's approach serves as a response to a legitimate threat to the music industry that has cost the U.S. economy billions of dollars and thousands of jobs. She said college students illegally share music at disproportionately high levels.
"[W]e make every effort possible to be evenhanded in each of our download cases," she said in an e-mail. "Pre-litigation letter[s] are sent to a university -- with the request that the school forward it on to the appropriate student -- so that student[s] can have the opportunity to settle at a substantially discounted rate, outside of court, before a formal lawsuit is filed against them."
Tenenbaum originally received a letter from the RIAA in 2005 requesting several thousand dollars for a pre-litigation settlement. Contending that financial problems prevented him from paying the sum, he spent a period of time communicating with the music industry and trying to lower the designated amount. Eventually, the back-and-forth came to a head, Tenenbaum said, and the RIAA pressed forth with its suit against him.
"They say, 'Oh, the longer this goes on, the bigger we're going to make this,'" he said. "A lot of people end up settling based upon that threat in addition to the gross invasion of privacy [and] all of the things you have to deal with if you take it to court and don't just pay."
The RIAA has defended the constitutionality of its actions under existing copyright law. It has said in court documents that its tactics are protected under the First Amendment right to petition the federal government for a redress of grievances. The group has also cited legal precedent that it claims supports the manner in which it has proceeded with Tenenbaum's case. Kennedy declined to comment on the case.
Both Tenenbaum and his counsel maintain that the focus of their challenge remains on the alleged unconstitutionality of a law that they say permits an abuse of the civil and criminal legal processes.
"I'm not arguing that artists shouldn't get some sort of remuneration for their efforts," Tenenbaum said. "But this lawsuit isn't so much about that, but about the inherently corrupt process that's been handed to us by the way laws have passed Congress and the way the record companies have taken advantage of it."
