In what is shaping up to be the most significant copyfight case in years, the Berkman Center for Internet & Society and Professor Charles Nesson of the Harvard Law School in mounting a challenge against a federal copyright law that is the heart of the Recording Industry Association of America's (RIAA) copyfascist strategy of extorting payments from music fans who share songs online.
Nesson has come to the defense of Joel Tenenbaum, a Boston University graduate student that was targeted by RIAA's many lawsuits.
Nesson argues that the Digital Theft Deterrence and Copyright
Damages Improvement Act of 1999 is unconstitutional because it
effectively lets a private group — the Recording Industry Association
of America, or RIAA — carry out civil enforcement of a criminal law. He
also says the music industry group abused the legal process by
brandishing the prospects of lengthy and costly lawsuits in an effort
to intimidate people into settling cases out of court.
the founder of Harvard's Berkman Center for Internet and Society, said
in an interview that his goal is to "turn the courts away from allowing
themselves to be used like a low-grade collection agency."
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The constitutionality of the excessive fines that results from these lawsuits has been raised before:
This large punitive component is not troublesome when statutory
damages are awarded for one or a few instances of illegal file-sharing. The
punitive component serves as an incentive to sue, and punishment for
breaking the law is quite normal. However, when a given punishment is
massively aggregated across many similar instances of misconduct, the
resulting penalty can become so large that it becomes grossly excessive in
relation to any legitimate interest in punishment and deterrence. As with the
large punitive damage awards that the Court has held unconstitutional in the
past decade, such a tremendous punishment violates substantive due
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There are quite a few legal precedents that the courts uses to determine whether such fines violates due process, among them BMW v. Gore and TXO Production v. Alliance Resources. In BMW v. Gore, the Supreme Court ruled that the punitive damages awarded to Gore violated the Due Process Clause of the Constitution and sought to limit what the Alabama Supreme Court can reward Gore:
In our federal system, States necessarily have considerable flexibility
in determining the level of punitive damages that they will allow in
different classes of cases and in any particular case. Most States that
authorize exemplary damages afford the jury similar latitude, requiring
only that the damages awarded be reasonably necessary to vindicate the
State's legitimate interests in punishment and deterrence. Only when an award can fairly be categorized as
“grossly excessive” in relation to these interests does it enter the
zone of arbitrariness that violates the Due Process Clause of the
Fourteenth Amendment. For that
reason, the federal excessiveness inquiry appropriately begins with an
identification of the state interests that a punitive award is designed
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The RIAA has been conspicuously avoiding targetting students from Harvard, due in large part to the presence of Berkman Center for Internet & Society. Alan Wexelbat of Corante's Copyfight explains:
Despite its widespread and very public campaign of suing its under-25 customer demographic, the RIAA seemed unwilling - some would say scared - to take on Harvard. Bangeman, along with others, noted that the Cartel's attack dogs seemed to be taking on easy targets.
Bloggers attributed this "oversight" on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad1. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.
The RIAA has long abused the court system to prop up its failing business model. In true copyfascist fashion, they extort payments from their own customers through intimidation and the threat of state coercion. Private property rights are abridged when the RIAA enforces its copyright.
Related links: http://blogs.law.harvard.edu/cyberone/riaa/