Legal Heavy-Hitter Files Counterclaim Against RIAA

Harvard Law School professor Charles Nesson filed a counterclaim recently against the RIAA. At the heart of that filing is a challenge to the constitutionality of the RIAA’s suits against those who download music from file-sharing services.

Nesson, who founded the Berkman Center for Internet and Society at Harvard, is going to bat for Joel Tenenbaum, a Boston University graduate student whom the RIAA charges with willfully downloading seven songs from a download site.

According to Nesson’s brief, “This is an unconstitutional delegation by Congress of executive prosecutorial powers to private hands.” In an interview, he noted, “that a private organization is allowed to take a huge chunk of government power and impose its will upon millions of people is, frankly, disconcerting.”

The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 can slap on copyright violations at up to $150,000 a piece. In Tenenbaum’s case, that would spank him to the tune of over a million dollars.

Nesson believes those accused by infringement claims rarely understand the charges against them, and more commonly cannot afford an attorney to represent them. Faced with few apparent options, they cave in and settle with the RIAA without their day in court. RIAA’s current practice amounts to a court-enforced shakedown, and not due process.

Many music producers measure success in CDs, a format increasingly seen as obsolete by their customers. Their measurements, and therefore their arguments, are intrinsically flawed. They continue to resist the digital age.

Nesson believes there must be a better way to protect the rights of artists.

“The current copyright system is outdated,” Nesson said. “The RIAA’s efforts are a legal antique in our digital world.”

It was recently announced that the Tenebaum legal team plans to call the following industry experts:

  • John Perry Barlow (former songwriter for The Grateful Dead)
  • Prof. Johan Pouwelse (technical and scientific director of European research project P2P-Next)
  • Prof. Lawrence Lessig (Professor of Law at Stanford Law School and founder of its Center for Internet and Society)
  • Prof. Jonathan Zittrain (Professor of Internet Law at Harvard Law School and a faculty co-director of Harvard’s Berkman Center for Internet & Society)
  • Andrew Grant (former antipiracy specialist at Macrovision)

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