Charlie Nesson, William F Weld Professor of Law at Harvard Law School, and whom has taken up the case of accused file-sharer Joel Tenenbaum, gives his thoughts on the case against him.
Yesterday the Berkman Center for Internet and Society published an interview between David Weinberger, Charlie Nesson and Joel Tennenbaum about the upcoming lawsuit against the RIAA in which the statutory damages for file sharing are being challenged.
The case, which they are characterising as being a ‘David v Goliath’ battle, concerns Tennenbaum making available 7 songs in a shared folder when he was 17 years old.
Tennenbaum explains how he began by representing himself in the action: “When they first send you a letter they give you a number to call and it’s like the ‘Pay Us Hotline’ and the people that pick up the phones aren’t lawyers they’re just operators… You say ‘Hi I got a letter’ and they say ‘Yes, Master Card or Visa?’
With the market value of 7 songs from iTunes being $6.93, the maximum penalty Tennenbaum faces is $1,050,000. The counterclaim he is making is that these lawsuits blur the distinction between civil law which is design to compensate for losses, and criminal law which seeks to punish and deter.
Nesson states: “This case is not about compensation at all, in fact it’s the position of the RIAA that the actual damages that Joel caused is totally irrelevant to the action… The only purpose is the punitive deterrent… and the purpose beyond it of using this kind of legend creation to scare a generation of kids and parents and schools and institutions that house them into reshaping their lives and their networks so as to conform to the needs of the copyright industry.”
The litigation machinery that has seen more than 30,000 individuals sued by the RIAA for sharing music and in which large settlements are demanded is referred to by Nesson as a shake-down: “Its’ a shake-down, it’s an extortion, it’s a blight and its an insult to the Federal Courts and the idea of law and to the poor people who have to work as the cogs of this administration making this machinery work…”
Nesson discusses the correlation between file sharing and society: “Peer to peer sharing is a different way of saying ‘we the people’ – that’s what ‘we the people’ is – ‘we the people’ is peers who share a collective consciousness constituted in a government and that’s where our law comes from. So from my point of view the internet at its most visionary is peer to peer technology and this copyright industry is making war against peer to peer… peer to peer is the enemy, open net is the enemy. From the copyright strategists point of view they’re looking at it and they’re thinking that their way to survive is to change the architecture of the net, to conform it to the needs of their industry and their lawsuit against Joel… way down the other end of the spectrum… is for that ulterior purpose.”
The parties will return to court on the 22 January 2009 and will then go forward with their discovery process of deposing the RIAA’s witnesses, with a trial date set for 30th March 2009.
There has been some speculation that the reason why no Harvard students have been targeted by the RIAA to date was to avoid involving the academics from the Berkman Centre. One must now question whether their participation in this lawsuit will open up Harvard students up to the RIAA litigation process.
Written by Sally Hawkins.
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