Harvard Prof Calls RIAA Lawsuits “Unconstitutional Abuse of Law”

Charles Nesson writes an op-ed piece explaining why RIAA lawsuits targeting file-sharers is an abuse of the legal process, and that the real problem is the tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world.

Harvard Professor Charles Nesson, who is defending Joel Tenenbaum against charges that he illegally downloaded 7 songs back in 2004, has written an article that gives his take on the case and what it means for them and the country as a whole.

“I believe that the RIAA litigation campaign against Joel and the millions of his generation like him is an unconstitutional abuse of law,” he writes. “Imagine a law which, in the name of deterrence, provides for a $750 fine [the lower threshold for statutory damages] for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew she was speeding.”

He points out that to make matters worse the fines are not publicized and that private individuals are the ones who enforce the fines with “no political accountability.” Copyright holders like the RIAA can also demand pre-litigation “settlement” offers demanding payoffs of between $3,000 to $7,000 for not pursuing the fines in court.

“Imagine that almost every single one of these fines goes uncontested, regardless of whether they have merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in a federal courtroom,” he adds.

Nesson furthers that the real problem in all of this is that antiquated copyright laws have yet to catch up to the realities of our digital age. The tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world, is what really must be addressed. Nesson has even recently argued that downloading music without permission of copyright holder qualifies for “fair use” exemption from copyright laws.

He calls Joel a “David” fighting the “Goliath” that is the RIAA. The case thereby illustrates one of the inherent failings of our justice system because “it treats the plaintiff and the defendant as though they are equally powerful entities, regardless of the actual resources each may have.” We all know this is far from the case because of the 35,000 plus file-sharers targeted by the RIAA less than a dozen have seen the inside of a courtroom. Why? Resources.

“It disregards the fact that the cost of preparing a legal defense for a trial is prohibitively high—unthinkable for any entity other than a wealthy individual or a good-sized corporation,” he says. “In most of the cases the RIAA has filed, the matter is resolved by the powerful organization threatening to press the suit into court unless individuals agree to their terms unconditionally. The powerful crush the weak. Goliath defeats David every time. This is not the justice for which I live and fight.”

Nesson also makes the point that when Congress wrote the Copyright Act it surely never intended to allow copyright holders to target “pro se noncommercial defendants,” those acquiring content for personal use. This is surely the case and something it needs to take up if copyright law is ever to catch up to the social realities of a digital world.

[Via Ars]

jared@zeropaid.com

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