Law schools take on the major labels in downloading saga

December 2008


It may not be good for business, but the US record labels are providing a heck of a legal education for numerous young law students and high profiles cases for their professors. Now Harvard law school Professor Charles Nesson has raised the stakes with the Recording Industry Association of America (RIAA), which represents the major record labels, by arguing that the litigation brought by the RIAA against alleged illegal downloaders and fileswappers is an abuse of federal process and the US statute it relies upon is unconstitutional. The case involves Joel Tenenbaum, a teenager when he allegedly downloaded just seven tunes over a Peer-to-Peer (P2P) file sharing network, is acing a legal action from the RIAA in US federal court for copyright infringement under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Over the course of years of litigation, during which he represented himself pro se with the help of his mother, Tenenbaum has filed a set of counterclaims against the music company plaintiffs, which he is pressing to have tried before a jury, and he also seeks to tack on the RIAA as a counterclaim defendant. It is in this context that Harvard Law School appears. On their blog, Professor Nesson and law students Shubham Mukherjee and Nnamdi Okike link to the court filings and excerpt their reasons for aiding Tenenbaum with his defence which says “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.” To help Tenenbaum defend his counterclaims, Professor Nesson and his Cyberone team filed a response opposition to plaintiff’s motion to dismiss, in which they charged that the federal law upon which the plaintiffs have hung their complaint is essentially a criminal rather than civil statute, because it seeks to punish those who fall afoul of its provisions with minimum statutory penalties that are very far out of proportion to actual damages. If found to be criminal actions then Nesson argues that a number of conclusions must necessarily follow including the right to due process afforded to criminal case defendants and a jury trail and a declaration that Congress has violated the Constitution by putting the prosecution of a criminal statute in the hands of private parties. The US District judge presiding over this case of the MAFIAA versus Tenenbaum might or might not find these arguments persuasive, but in either event it seems inevitable that the outcome will be switched to the US Circuit Court of Appeals and perhaps even to the US Supreme Court. If so, this case could have important and very far reaching consequences for the record industry.

But in Bangor, Maine a federal judge has sided with the record industry and thrown out efforts by students in the University of Maine System to fend off lawsuits filed last year alleging that they illegally downloaded music onto their computers over UMS peer-to-peer networks. In September, U.S. District Court Judge John Woodcock considered a flurry of motions filed by third-year law students from the University of Maine School of Law supervised by their professor, Deirdre Smith, who is also acting for two of the defendants, seeking dismissal of the case. In his 34-page ruling at the end of October, Woodcock rejected arguments that the way the lawsuit was filed violated federal court rules of procedure when issuing law suits and the University has now said it would comply with a court order to release the names of students who have allegedly downloaded but added that it would not provide the names of students without a court order.

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