Archive for October, 2008

effort to show RIAA lawsuits are unconstitutional

October 30, 2008

People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It’s not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it’s been brought up in court, the arguments haven’t been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it’s been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA’s strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA’s efforts in a court filing, where it’s noted that the very basis for many of the RIAA’s lawsuits is very likely unconstitutional.

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called “theft” in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That’s because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.


This Court should exercise its inherent power to allow background image redress to Joel Tenenbaum for Plaintiffs’ abuse of law and federal civil court process. As detailed throughout this brief, Plaintiffs are using any and all available avenues of federal process to pursue grossly disproportionate — and unconstitutional — punitive damages in the name of making an example of him to an entire generation of students. The case at hand warrants the use of inherent federal power not just because of what Plaintiffs are doing to Joel Tenenbaum in this Court, but because of the manner in which Plaintiffs are abusing the federal courts all across the country. Plaintiffs have pursued over 30,000 individuals in the same way they have pursued Joel…. For these 30,000 individuals, Plaintiffs have wielded federal process as a bludgeon, threatening legal action to such an extent that settlement remains the only viable option. Joel Tenenbaum is unique in his insistence, in the face of it all, on having his day in court. The federal courts have an inherent interest in deciding whether they will continue being used as the bludgeon in RIAA’s campaign of sacrificing individuals in this way.The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a “perversion of lawfully initiated process to illegitimate ends,” and citing the case law that suggests such behavior should be punished by the courts: “One who uses a legal process … against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.”


And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA’s own words against it. First, the writers note (and cite the relevant cases) that even if there is a “proper purpose” behind the filing, it’s an abuse of process if the primary purpose in filing the lawsuit is different than the “proper purpose” behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its “deterrence” educational program. From deterrence, Nesson shows how it’s actually used as more of a bludgeon to get students to settle, which is clearly not the “proper purpose” of the law:

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. See Milford Power Ltd. Partnership by Milford Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass. 1996) (holding that “the essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding”). 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).This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees’ nest of Harvard Law.

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.”


Harvard law professor fights RIAA with new ideas

October 30, 2008

October 30, 2008

A Harvard law professor has opened a new front in the battle between the Recording Industry Association of America (RIAA) and alleged music pirates by challenging the constitutionality of a statute being used by the industry group to bring lawsuits against alleged copyright violators.

The case involves an individual named Joel Tenenbaum, who was sued by the RIAA for allegedly illegally copying and distributing copyrighted songs belonging to several music labels. The lawsuit was filed in U.S. District Court in Boston in August 2007 after what the music labels claimed was more than two years of effort trying to get Tenenbaum to accept a settlement involving an undisclosed amount.

The music labels claimed to have discovered more than 800 copyrighted songs stored on a shared folder in Tenenbaum’s computer, though only seven of those songs are specified in the case.

Harvard Law School professor Charles Nesson this week filed a counterclaim on behalf of Tenenbaum, challenging both the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 and the music labels’ use of it against Tenenbaum. The claim is notable because it is broader than previous challenges related to the constitutionality of the RIAA’s antipiracy campaign.

Nesson’s move adds to the growing number of challenges being thrown at the RIAA’s campaign from several quarters. Most of the recent ones have focused on the industry group’s use of a company called MediaSentry Inc. to gather evidence against alleged copyright violators. Several groups, including the Massachusetts State Police, Oregon’s attorney general and Central Michigan University in Mount Pleasant, have called MediaSentry an unlicensed private investigator that is unlawfully collecting information on behalf of the RIAA.

In his motion, Nesson argued that the statute was essentially a criminal statute, and that it was unconstitutional to apply the law to prosecute a civil case in federal court, which is where previous RIAA lawsuits have been argued. He sought damages on behalf of Tenenbaum for what he claimed was the RIAA’s abuse of process in pursuing the case.

He also challenged the constitutionality of the steep penalties for copyright violations that are provided under the act. The penalties range from $750 to $30,000 per infringement, with a maximum of $150,000 for certain willful violations. Last year, Jammie Thomas was ordered by a federal jury in Duluth, Minn., to pay $220,000 to six music companies for illegally downloading and sharing copyrighted music over a peer-to-peer network.

Nesson argued that such fines are “grossly excessive” and far beyond the rational measure of any financial damage that may have been caused by Tenenbaum’s alleged piracy.

Nesson contended that with the law, Congress has placed the power to prosecute an essentially criminal statute in the hands of private entities such as the RIAA instead of the courts. He argued the statute has given the RIAA “unbridled discretion” to sue millions of individuals such as Tenenbaum and to threaten them with expensive and time-consuming litigation if they dare challenge it. He argued that any individual prosecuted under the act is entitled to the protections of criminal law and procedure.

“This is an unconstitutional delegation by Congress of executive prosecutorial powers to private hands,” Nesson wrote in his brief.

The issues raised by Nesson are broader than previous challenges, which have tended to focus on the constitutionality of the statutory fines provided under the copyright act.

Speaking with Computerworld, Nesson said that he was motivated to fight on Tenenbaum’s behalf because of his own concerns about the RIAA’s tactics in its antipiracy crusade. He noted that Tenenbaum had initially offered $500 to the RIAA for his alleged violations, but that the group refused the offer and instead has been systematically attempting to “shake him down” for more money.

“They have been pursuing him with every form of federal and civil process they can manage,” while pushing up the “shakedown” price each time, Nesson said. He argued that the RIAA’s real interest in pursuing Tenenbaum was to make an example of him and to intimidate other Internet users in a similar situation into settling without having their rights heard in court.

“What we are challenging is the creation of a private police force that is empowered to give out million-dollar tickets and to use the federal courts as their collection agencies,” Nesson said.

How successful such arguments will be is unknown. The RIAA has already filed a motion seeking to dismiss the counterclaim. When asked for comment, an RIAA spokeswoman pointed to the motion saying, “We are going to let our motion to dismiss speak for itself.”

The RIAA’s motion argues that Nesson’s counterclaims fail to state specific claims upon which relief should be granted. For example, the abuse of process claim is not substantiated by any specific examples of that abuse, the motion said.

“Indeed, Defendant’s allegations amount to little more than a complaint about difficulties associated with being a defendant in a lawsuit,” the RIAA motion said. “These complaints do not support a legal claim for abuse of process.” The motion also argued that the RIAA’s conduct in pursuing copyright infringers is protected under First Amendment rights.

The closest a court has come to expressing an opinion on the constitutionality of the RIAA’s use of statutory penalties occurred in September when a federal judge in Minnesota overturned the $222,000 jury award against Thomas. In that case, the judge threw out the verdict on procedural grounds, saying that he had failed to give the jury proper instructions about a key matter in the case. However, in his ruling, federal Judge Michael Davis questioned the “oppressive” size of the penalties while urging Congress to reconsider them.

Judge admonishes the RIAA about ethics

October 29, 2008

A federal judge in Boston openly chided the Recording Industry Association of America (RIAA), after reminding the RIAA’s lawyers they have ethical obligations that must be fulfilled.

In a court hearing in Judge Nancy Gertner’s courtroom, where only RIAA lawyers were present, she said the following:

“Counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers… to understand that the formalities of this are basically bankrupting people, and it’s terribly critical that you stop it,” she warned.

“There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources.”

“Sometimes they (file sharers) answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there’s a negotiated settlement.”

Defendants were in the courtroom at the time Judge Gertner spoke with the RIAA’s attorneys, but none of the defendants had legal representation. Something that makes me overly curious about this case is that Judge Gertner consolidated all of the cases, which could negatively impact the defendants’ chances of a fair court case in the future.

The full transcript (PDF) of the June 17 conference can be found by clicking here.

The judge’s statements likely won’t have a significant impact on the current case, but it’s interesting to hear a federal judge voice the same thoughts many of you have stated in the past.

The RIAA has filed thousands of John Doe lawsuits in the United States, in an effort to learn more about a file sharer based on an IP address. Once a person’s identity has been discovered, the RIAA often attempts to settle out of court for a few thousand dollars, or go to court where the penalties drastically increased.

Regardless of the overall effectiveness of the lawsuits, the RIAA is expected to continue to file lawsuits against alleged file sharers who are caught sharing copyrighted music.

performers form new coalition

October 5, 2008

British pop and rock stars including Radiohead, Robbie Williams, David Gilmour and Kate Nash have signed up to a new body to fight for musicians to have more control over their work.

It is almost exactly a year ago that Radiohead made their latest album available on their own website.

It was a simple act – but it was like an incendiary bomb in the music industry.

Radiohead were one of Britain’s biggest bands, but their major label deal had expired and they proved that big names no longer needed the big labels.

“I think it was one piece of the hammer that started to crack the mould of the old business model,” says Brian Message, one of the band’s co-managers.

“It certainly gave everybody the thought that, you know what, you can do things in a different way. For us, the key thing was about an artist taking control and doing what they wanted to do.

“It wasn’t an attempt at a business model of the future – it was the right thing for Radiohead at that time in their career. From those roots, everything grew.”

  When artists see their music put into all forms in the new digital arena, they’re never consulted about it
Jazz Summers
The Verve’s manager

It may not have been a deliberate manifesto for other artists to follow, but their success has shown their contemporaries that they can do things differently.

Few bands have the clout of Radiohead, but the balance of power has shifted.

Many will always need labels to build their careers and market their music. But artists do not need labels as much as they used to.

It is against this backdrop that the Featured Artists’ Coalition has been launched, with the aim of wrestling more control for the musicians.

That includes keeping ownership of their recordings – currently, the rights are usually kept by the labels.

“I’ve managed a lot of big artists,” says Jazz Summers, who looks after The Verve, among others.

“They always say this – why have I paid for my record and I don’t own it? It’s a bit like you buying a house but at the end of it, when you’ve paid for it, the bank manager says ‘I own it’.”

Instead, the body is proposing that artists should own the rights but lease them back to labels, technology companies, or anyone else for that matter, for up to 35 years, as happens in the US.

Then there are the deals done by record labels and music publishers to sell music on a range of new digital services.

  Robbie Williams’ deal was done when CD sales really meant something – those sorts of deals are just not possible any longer
Tim Clark
Robbie Williams’ manager

“When artists see their music put into all forms in the new digital arena, they’re never consulted about it,” Mr Summers says.

Those deals, according to the managers, include download stores like iTunes, Napster and the new MySpace Music, and mobile phone services run by the likes of Nokia and Sony Ericsson.

“I think the people making the millions at the moment are the technology companies and the internet service providers [ISPs],” Mr Summers says, naming Apple, MySpace and YouTube.

“The artists deserve a fair share, and they’re not getting that.”

But he says the new campaign is not about the money, but rather about the artists having control of their art.

Robbie Williams is one who has already taken control.

In January, his manager Tim Clark told his label EMI that he would not deliver a new album until he was happy with how EMI would handle it after the label was taken over.

The artists may have more bargaining power, but why should we feel sorry for pop stars who complain about their deals?

  I’ve had friends who’ve had dodgy deals and have been completely screwed
Kate Nash

Does Williams, who famously proclaimed that he was rich beyond his “wildest dreams” when he signed to EMI for £80m in 2002, really need any help?

“Robbie Williams’ deal was done when CD sales really meant something,” Mr Clark says. “Those sorts of deals are just not possible any longer.”

The coalition is “not about Robbie Williams”, he says, instead pointing to former Zero 7 singer Sia, whom his company has managed for the last eight years.

“She was dropped by Universal Island after just seven months,” he says. “We have worked incredibly hard, as has she, for very little return.

“It is artists like this, and young artists – artists that do really need protecting, artists that aren’t in Robbie Williams’ position, that actually need protecting.”

Kate Nash is one of the artists on board and is among those fronting the coalition.

“I’ve had friends who’ve had dodgy deals and have been completely screwed,” she says.

“In this industry, there is so much sharky water that you’ve got to be aware of what you’re getting yourself into.

“Don’t be blinded by all the shiny lights and pay-cheques – it’s not like that.

“You’ve got to care about what you’re doing and you’ve got to look after yourself because no-one else is necessarily going to do that.”