Art and Entertainment

law school professor takes on RIAA, nesson battles RIAA, nesson says copyright unconstitutional
Josh Reynolds/AP
Harvard Law professor Charles Nesson

Lawsuits Brought by Music Industry Are Unconstitutional, Lawyer Says

November 18, 2008 11:59 AM
by Rachel Balik
A Harvard Law School professor is fighting the RIAA suits against music downloaders, stating that the copyright law the organization invokes is unconstitutional.

Law Professor Retaliates Against the RIAA

Harvard Law Professor Charles Nesson has taken the case of Boston University graduate student Joel Tenenbaum, who is being sued by the RIAA for sharing music via peer-to-peer application Kazaa. Nesson decided to help Tenenbaum, one of many alleged music pirates who appeared in court without representation, but has gone one step further. He is challenging the law upon which the RIAA makes its case, claiming that it is unconstitutional.

The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 was intended to protect copyrights as file sharing became more common online; Nesson says it has enabled the RIAA to treat courts like “a low-grade collection agency,” the AP reports. Most suits brought about by the RIAA are not tried in front of a judge, but are settled outside the court to avoid legal fees. As a result, the RIAA is free to set its own terms for collecting alleged damages.

Nesson is arguing that the Act is a criminal statute but is being applied in civil courts, Computerworld said. Nesson also told Computerworld that he was concerned that the RIAA was seeking fines that significantly exceed the amount of actual damages incurred. He believes that the RIAA is abusing power.

Nesson’s ultimate goal, he told the AP, is persuade the music industry to find new ways of distributing music, such as putting it online for free but collecting ad revenue.

In his blog on the Harvard Law site, Nesson writes, “Our case is not only against RIAA, it is against the court and court system that is exerting this power.” Part of the argument Nesson makes is that the Internet, in its open source capacity, should be a place for sharing music. The concern is that if the RIAA is legally permitted to exert its control in this instance, then it will ultimately compromise the freedom available on the Internet.

Related Topic: Radiohead gives away music for free

In 2007, the band Radiohead decided to make a statement about the pirating of music by simply offering its newest album online and telling fans to pay what they thought the music was worth. Radiohead fans could download the album completely for free if they chose, since the band distributed the album without the help of a label. When news of the band’s decision surfaced, the Times of London wrote an article about it, “The Day the Music Industry Died.”

Reference: Downloading music legally and the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999

For many years, programs like Napster, Limewire and Kazaa made file sharing and downloading free music an easy and seemingly innocent pastime. But if discovered by the RIAA, using these applications can lead to extremely expensive lawsuits. Consult the findingDulcinea Web Guide to Downloading Music for information on what legal downloading is, how the RIAA handles it, how to avoid making mistakes and how to download music safely and legally.

Read the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 on the Library of Congress Web site.

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