p2pnet news view RIAA | P2P:- I know the name Charles Nesson well. He’s the William F. Weld professor of law, Harvard Law School, and founder and faculty co-director, Berkman Center for Internet & Society.
Vivendi Universal, EMI, Warner Music and Sony BMG and their RIAA have lately been zeroing in on universities across the US, “turning the schools into marketing and sales divisions, copyright cops and Big Music enforcers, wholly financed by parents and taxpayers,” I said in 2007, going on to quote Nesson and John Palfrey, clinical professor of law and executive director, the Berkman Center, as saying:
“Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a ‘passive conduit’ for students downloading music.”
Nesson and Palfrey suggested Harvard and the 22 universities to which the RIAA had by that time sent ‘pre-litigation’ extortion notices ought to take strong, direct action, ie, “tell the RIAA to take a hike”.
They went on »»»
This Spring, 1,200 pre-litigation letters arrived unannounced at universities across the country. The RIAA promises more will follow. These letters tell the university which students the RIAA plans on suing, identifying the students only by their IP addresses, the license plates of Internet connections. Because the RIAA does not know the names behind the IP addresses, the letters ask the universities to deliver the notices to the proper students, rather than relying upon the ordinary legal mechanisms.
Universities should have no part in this extraordinary process.
Not at all coincidentally, Harvard was the only major US university the RIAA left alone. So I was excited about the possibilities when I read on Ray Beckerman’s Recording Industry vs The People that Nesson was going beyond public statements, and including the RIAA in his Evidence 2008 course, to become actively involved in what’s today a high-profile the case — Sony BMG Music Entertainment v Tenenbaum in Boston.
Keen young professionals with incomparable resources
Nesson was, and still is, leading not merely one or two people, but a “crack team of CyberOne students,” as Harvard’s CyberOne: Law in the Court of Public Opinion blog described it.
‘If one lawyer can act for three or four, or more, clients simultaneously, just imagine what an entire team of keen young professionals with the incomparable resources of Harvard behind them, and a veteran law professor at the helm, will be able to do,’ I thought to myself. I even made several references to this possibility in emails to one of the team members.
So I’ve been surprised and disappointed to notice this pool of heavy duty legal manpower seems instead to be locked into this single case, despite the fact Massachusetts unfortunately has a substantial supply of unrepresented defendants, with the extortionate “settlements” and “default judgments” rolling in against them on a seemingly continuous basis.
Ray Beckerman has been acting for RIAA victims almost since Day One and as well as maintaining an archive of RIAA documents and cases, is also a vocal critic of the corporate music ‘trade’ unit, and I asked him for his thoughts.
p2pnet:- On first blush, it seems having a Harvard law professor and his students representing an RIAA defendant pro bono has to be a good thing. Is that how it is?
Beckerman:- If they do a good job, yes. But if they do a bad job, they could wind up doing more harm than good.
p2pnet:- That suggests they mightn’t be doing as well as might first appears …
Beckerman:- Well, one thing jumps out at me. They recently sent a letter to the Justice Department asking it to intervene on the constitutionality issue. The letter, in my humble opinion, was not well thought out, because instead of attacking the constitutionality of the statutory damages statute as applied to each 99-cent transaction as though each were a separate copyright infringement, it only attacked the statute to the limited extent that it involved willfulness, and only to the extent that it attacked individuals rather than businesses.
In effect, it could be construed as conceding it’s okay to assess damages of $150,000 (or 450,000 times the actual damages) against a business for infringement of a single MP3, and that it’s okay to assess damages of $30,000 (or 85,000 times the actual damages) against an individual.
Needless to say, both of those eventualities are outlandish. I’m sure the RIAA would be glad to get $30,000 per song file from Joel Tenenbaum. Even the ridiculous Jammie Thomas verdict of $220,000 was for less than that — $9,250 per song file, to be exact. So what professor Nesson was accomplishing by such a letter is beyond me. I hope he retracts it, and quickly.
p2pnet:- Their involvement was heralded by the mainstream media as a landmark event …
Beckerman:- Well, other schools such as the University of Maine Law School, the San Francisco University Law School, and the Franklin Pierce Law Center entered the struggle much earlier. Secondly, it would indeed be a landmark event if a prestigious large law school such as Harvard really got into this fight, helping other unrepresented defendants in Massachusetts. But that doesn’t appear to be happening. Did they become involved only because they were specifically asked to do so by the judge? Was this an ‘offer one can’t refuse’, if you know what I mean?
p2pnet:- But they are in the fight, for whatever reason. And don’t you and they share similar motivations?
Beckerman:- Maybe, maybe not. I came into it because I saw a bunch of bullies trying to use their wealth to take advantage of helpless people. Since Harvard shows no signs of taking on other cases, I have to draw the conclusion their reasons are different. If they have a lot of people working on one half-contested case, I don’t see why they couldn’t take on five or 10 additional cases. Also, their roster of expert witnesses suggests they might have an alternative agenda of making a statement about copyright law. If so, I don’t think they’ll get a warm reception in the court because it’s not the role of a judge to make new law in an area that’s regulated by statute.
p2pnet:- Will Sony v Tenenbaum establish important precedents?
Beckerman:- Maybe, maybe not. You have to bear in mind each case has its own set of facts, and this case is one of those few cases I’ve seen where, according to what I’ve read, Joel appears to have actually engaged in the P2P file sharing of copyrighted song recordings the record companies allege he engaged in. In other words, if that’s correct, it would be pointless in this case to get involved in MediaSentry’s investigative techniques, or Doug Jacobson’s “junk science” expert report, or any of the other compelling technical issues which led them to Tenenbaum in the first instance, since in this case they got lucky and apparently found the right person. The technical issues which were so critical in the cases where the defendants had never even heard of file sharing, such as UMG v Lindor, Atlantic v Andersen, Capitol v Foster, Elektra v Santangelo, Elektra v. Schwartz, and all the others, are simply not relevant in this case.
If Nesson and his team were to fight over those issues, they’d probably establish bad precedents, which could actually harm the many defendants out there who are completely innocent, and were drawn into this only because of the RIAA’s incompetent investigative techniques.
In the Joel Tenenbaum case, based on what I’ve read about it, there are only limited issues, for example, the constitutionality of the damages theory, the misbehavior of the RIAA, and the recoverability of statutory damages for recordings registered with the Copyright Office after Joel began using filesharing software. If the First Circuit upholds Judge Gertner’s ruling on televised streaming of a court hearing, that could be an important precedent for more openness in the RIAA cases.
p2pnet:- So what, in your view, does the future hold for the Harvard team and Joel?
Beckerman:- That I don’t know. But I sure hope they’ll soon make themselves available to the many other people in Massachusetts who’ve been caught up in the RIAA’s litigation campaign, many of whom are completely innocent of having committed copyright infringement at all. And of course I hope they’ll be more careful in their legal arguments than they were in the ill-considered letter they sent to the Solicitor General. And I hope they correct that particular error as soon as humanly possible.
Bottom line, it’s just one case dealing with just one set of issues.
What we really need is full representation for all of the unrepresented defendants out there.
February , 2009
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