October 29th, 2008
Harvard's Charlie Nesson raises Constitutional questions in RIAA litigation
In a major development in RIAA litigation, Prof. Charles Nesson of Harvard Law School is charging that the RIAA’s tactics are an abuse of federal process and that the law on which the litgation rests — the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 — is unconstitutional.
Nesson, with the help of Harvard Law 3Ls Shubham Mukherjee and Nnamdi Okike (which should tell you that our future leaders may have more “un-American” names than Barack Obama), made the arguments in defending Joel Tenenbaum’s counterclaim against the record companies. Tenenbaum, who was a teenager at the time he downloaded seven songs over a P2P network, is also seeking to join the RIAA in his suit.
In the opposition to plantiff’s motion to dismiss counterclaim (PDF), Nesson charges that the federal law is essentially a criminal statute in that it seeks to punish violators with minimum statutory penalties far in excess of actual damages. The market value of a song is 99 cents on iTunes; of seven songs, $6.93. Yet the statutory damages are a minimum of $750 per song, escalating to as much as $150,000 per song for infringement “committed willfully.” (Title 17, s. 504(c))
Harvard has a website with filings and other information in RIAA v. Tenenbaum.
If the law is in fact criminal in nature:
- Defendants are entitled to the due process accorded criminal defendants, including criminal procedure and right to a jury trial.
- Congress has violated the Constitution by puttng the prosecution of a criminal statute in the hands of private parties.
- Congress has violated separation of powers by requiring the courts to try cases according to inappropriate civil processes.
- Congress has violated the 5th and 8th Amendments by requiring “grossly excessive statutory damage awards.”
The law, Nesson writes, is “wholly analagous” to a law that provides the following regime for speeders: (1) a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding; (2) the fines are not publicized and few drivers know they exist; (3) enforcement not by the government but by a private police force that keeps the fines for itself and:
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.
The judge in the consolidated case may be amenable to the argument that the RIAA is abusing process, but it may take appeals to the Circuit Court, or even the Supreme Court, to gain traction on the Constitutional question. Regarding process, Judge Nancy Gertner said:
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 …
