They’ve been getting away with terrorising completely innocent American families, including very young children, since 2003, demanding they pay $3,000 and upwards or face a civil trial with legions of highly paid lawyers and the multi-billion-dollar Big 4 record labels against them.
Not surprisingly, some pay and it’s been largely left to a tiny handful of determined lawyers and their brave RIAA-victim clients to stand up to the vicious lawsuits launched by the RIAA.
Initially, the ‘trade’ unit focused its attention on families, issuing around 750 subpoenas every month, claiming it was targeting these people — first the parents and after months or years of publicly humiliating them, the children — falsely accusing them of being “massive” illegal online distributors of digital music files owned by the Big 4.
Then it turned on students at universities across America, coercing their administrations and staff into acting as corporate copyright cops, paid for out of the pockets of US taxpayers and school fees.
It seemed only Harvard University escaped with professors Wendy Seltzer and Charles Nesson leading the way via a joint paper (see below) in which they set the scene for direct action.
Under RIAA v University, frame a motion to, “quash a subpoena from a copyright holder to the university for the identity of a student downloader on grounds of undue burden,” he says in what has to be one of the most apt law courses at any US school excepting, perhaps, Maine where two student lawyers actively represented two university students.
Then he and a “crack team of CyberOne students” went to bat for Joel Tenenbaum,” said Harvard’s CyberOne: Law in the Court of Public Opinion blog, going on »»»
The Recording Industry Association of America (RIAA) is in the process of bringing to bear upon the defendant, Joel Tenenbaum, the full might of its lobbying influence and litigating power. Joel Tenenbaum was a teenager at the time of the alleged copyright infringements, in every way representative of his born-digital generation.
The plaintiffs and the RIAA are seeking to punish him beyond any rational measure of the damage he allegedly caused.
They do this, not for the purpose of recovering compensation for actual damage caused by Joel`s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future.
The plaintiffs in the suit and the RIAA are abusing law and this court`s civil process. Because Joel Tenenbaum allegedly downloaded seven songs from a file-sharing network comprised of millions of his peers doing likewise, the plaintiffs have already imposed upon him process filling a docket sheet running back over years.
Professor Wendy Seltzer
Professor John Palfrey
Professor Johan Pouwelse
EFF co-founder John Perry Barlow
Professor Lawrence Lessig
Professor Terry Fisher
Professor Jonathan Zittrain
Andrew Grant (former antipiracy specialist at Macrovision)
And interestingly, Matthew ‘Matt the Dentist’ Oppenheim, a man who’s been acting as a principal Big 4 attack lawyer since day one.
They’ll be dealing with Timothy Reynolds, Eve Burton, and Laurie Rust, the same Denver, Colorado, lawyers trying to dismiss UMG Recordings v Lindor in Brooklyn, as Recording Industry vs The People‘s Ray Beckerman points out.
The case is SONY BMG Music v Tenenbaum, one of the hundreds consolidated in Boston under London-Sire v Does 1-4.
Harvard vs the RIAA
In their efforts to increase sales and turn students into fully compliant consumers, EMI (Britain), Vivendi Universal (France), Sony BMG (Japan and Germany) and Warner Music (US) turned their RIAA loose on junior and senior schools across America, allowing it to run wild, disrupting classes, sucking up valuable staff time and interferring with campus life, said p2pnet in May last year, going on:
“The Bush government seems not only content to allow this to happen, but is actively encouraging it.”
Seltzer and Nesson took the view that the Harvard University’ iss educational mission is broader than RIAA demands »»»
Since its founding, Harvard has been an educational leader. Its 1650 charter broadly conceives its mission to include `the advancement of all good literature, arts, and sciences, [and] the advancement and education of youth in all manner of good literature, arts, and sciences.` From John Harvard`s library through today`s my.harvard.edu, the University has worked to create and spread knowledge, educating citizens within and outside its walls.
Students and faculty use the Internet to gather and share knowledge now more than ever. Law professors at the Berkman Center for Internet & Society, for example, have conducted mock trials in the online environment of Second Life; law students have worked with faculty to offer cybercourses to the public at large. Students can collaborate on `wiki` websites, gather research materials from far-flung countries, and create multi-media projects to enhance their learning.
Yet `new deterrence and education initiatives` from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for more than 1,200 `pre-litigation letters.` Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement.
But these responses distort the University`s educational mission. They impose financial and non-monetary costs, including compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression.
One can easily understand why the RIAA wants help from universities in facilitating its enforcement actions against students who download copyrighted music without paying for it. It is easier to litigate against change than to change with it. If the RIAA saw a better way to protect its existing business, it would not be threatening our students, forcing our librarians and administrators to be copyright police, and flooding our courts with lawsuits against relatively defenseless families without lawyers or ready means to pay. We can even understand the attraction of using lawsuits to shore up an aging business model rather than engaging with disruptive technologies and the risks that new business models entail.
But mere understanding is no reason for a university to voluntarily assist the RIAA with its threatening and abusive tactics. Instead, we should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students. We should be lobbying Congress for a roll back of the draconian copyright law that the copyright industry has forced upon us. Intellectual property can be efficient when its boundaries are relatively self-evident.
But when copyright protection starts requiring the cooperation of uninvolved parties, at the cost of both financial and mission harm, those external costs outweigh its benefits. We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge. The old copyright-business models are inefficient ways to give artists incentives in the new digital environment.
Both law and technology will continue to evolve. And as innovators develop new ways of sharing copyrighted material, the University should engage with both creators and the `fair users` who follow and build upon their works. Finding the right balance will be challenging, but projects such as Noank Media, developed by faculty and fellows at the Berkman Center, provides one glimpse into what the future may hold. Just this year, Noank Media became a functioning international corporation with operations in both China and Canada.
With the goal of fostering `limitless legal content flow` through innovative licensing deals, Noank makes shared music look `free` to its listeners while reimbursing the copyright holders directly for downloads of their materials. Noank does this by serving as an aggregator, collecting payment through institutions such as libraries and schools, as well as Internet Service Providers. Forward-thinking copyright holders recognize that this system may offer them more rewards, not less control.
The University`s educational mission is broader than the RIAA`s demands. We don`t have all the answers either, but rather than capitulating to special interests, we should continue to search for fair solutions that represent the University`s mission, its students, and the law in a way that educates students to be leaders of the digital 21st century.
[Seltzer `96 (HLS `99), is a Fellow at the Berkman Center for Internet & Society. Nesson `60 (HLS `63) is William F. Weld Professor of Law at Harvard Law School and the founder and faculty co-director of the Berkman Center for Internet & Society. Re-printed from The Harvard Crimson.]
In their defense of their counterclaim against the RIAA and the music companies that back it, “In essence, Plaintiffs are using the prosecution of Joel Tenenbaum to extort other accused infringers: the accused are told to either pay the settlement, or else be exposed to the protracted litigation and potentially astronomical damages that Joel now faces,” say Nesson and his assistants.
They go on »»»
The intimidation tactics are working: of the 30,000 accusations the RIAA has leveled against individuals, only a single defendant has made her case in front of a judge and jury (that sole defendant is now awaiting a new trial).
They`re referring to the Jammie Thomas farce in which judge Michael Davis, who presided, has now ruled that it be heard again.
Nesseon, et al, add »»»
The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say stop.
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