Harvard Prof Challenges Song Sharing Law

The Recording Industry Association of America has a new enemy in its effort to shut down music sharing. Harvard Law professor Charles Nesson has come to the defense of a Boston University graduate student targeted in one of the music industry's lawsuits. His argument is interesting in that it challenges the RIAA's legal position. If he wins, it may be a revolution in copyright law.

The Associated Press says, “Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the Recording Industry Association of America, or RIAA - carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court. Nesson, the founder of Harvard's Berkman Center for Internet and Society, said in an interview that his goal is to 'turn the courts away from allowing themselves to be used like a low-grade collection agency'.”

RIAA disagrees with that saying, according to the AP, “its efforts to enforce the copyright law is protected under the First Amendment right to petition the courts for redress of grievances. Tenenbaum [Nesson's client] also failed, the music group noted, to notify the U.S. Attorney General that that he wanted to contest the law's constitutional status. Cara Duckworth, a spokeswoman for the RIAA, said her group's pursuit of people suspected of music piracy is a fair response to the industry's multibillion-dollar losses since peer-to-peer networks began making it easy for people to share massive numbers of songs online. 'What should be clear is that illegally downloading and distributing music comes with many risks and is not an anonymous activity,' Duckworth said.

What is clear is that the awards in these music sharing cases are ridiculous. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation. When a CD costs $20 at most, these are insane amounts of “compensation.”

The AP also noted, “In September, a federal judge granted a new trial to a Minnesota woman who had been ordered to pay $220,000 for pirating 24 songs. In that ruling, U.S. District Judge Michael J. Davis called on Congress to change copyright laws to prevent excessive awards in similar cases. He wrote that he didn't discount the industry's claim that illegal downloading has hurt the recording business, but called the award ;wholly disproportionate' to the industry's losses.”

US copyright laws remain barely 20th century, and that isn't good enough in 2008.

© Copyright 2008 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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