Harvard Professor Takes on the RIAA

Files counterclaim on behalf of accused file-sharer for abuse of process across state and federal jurisdictions, and also seeks to halt a HDD inspection.

The RIAA has always feared Harvard University and it's crystallized by the fact that not a single student that I'm aware of there has ever been sued in the music industry's attack on campus file-sharing around the country.

Now the battle is heating up as Harvard Law professor Charles Nesson has now filed an amended counterclaim on behalf of defendant Joel Tenenbaum in Sony BMG Music v. Tenenbaum. The counterclaim fires back against the suing label and the RIAA for abuse of process across state and federal jurisdictions.  Additionally, Nesson is also seeking protection against a HDD inspection. 

Nesson is 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. He notes that the act is essentially a criminal statute and that therefore defendants are required to have the same protections afforded other criminal statues like legal representation, trial by jury, and due process.

Specifically, he argues that the RIAA is abusing the law "to advance ulterior motives" and that it is simply trying to intimidate individuals rather than seek redress for perceived economic losses.

From the brief:

10. On information, belief, and evidence submitted concurrently in “Defendant’s Response to Plaintiffs’ Motion to Dismiss,” Plaintiffs did not file this suit primarily to seek redress against Defendant for harm that he allegedly caused.

11. Plaintiffs filed this suit primarily to advance ulterior purposes. On information and belief, these ulterior purposes include, but may not be limited to:

• Unlawfully sacrificing Defendant to intimidate other Internet users into altering the norms of Internet usage.


• Unlawfully sacrificing Defendant to intimidate other accused infringers into settling without exercising their constitutional right to have their defenses heard in court.

In other words, the RIAA is abusing the process by seeking far more than simple restitution for losses, but rather is seeking to scare others into settling out of court, something myself and others having been crying foul over for years.

"The plaintiffs and the RIAA are seeking to punish him [Joel Tenenbaum] beyond any rational measure of the damage he allegedly caused," reads a motion to prevent the RIAA from dismissing the counterclaim. "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."

Well said.

Nesson also questions the constitutionality of the damages themselves, an issue which has been raised by Ray Beckerman of Recording Industry vs the People in the past.

"In their attempts to advance their ulterior purposes, Plaintiffs abused prosecutorial discretion unconstitutionally conferred upon them by Congress and abused a statutory scheme providing for unconstitutional damages," continues the counterclaim.

In the case of Elektra vs Barker Beckerman is challenging the constitutionality of the statute awarding damages for copyright infringement to the extent it could be construed as authorizing more than nine times the actual damages. The Supreme Court has previously ruled that "compensatory damages are intended to redress a plaintiff’s concrete loss."

If you recall, Jammie Thomas was ordered to pay some $220,000 for illegally sharing 24 songs, or about $9,250 for each. It's a case that has since been declared a mistrial, but it was the Judge's instructions to the jury that were faulted and not the damages awarded to the RIAA.

"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 in an interview with Computerworld.

It's about time that Harvard's brains faced off against the RIAA's brawn in court and finally prove just how unfair and unconstitutional the RIAA's anti-file-sharing campaign has been all along.