Computer science is no more about computers than astronomy is about telescopes - E.W. Dijkstra
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Law boffin calls RIAA lawsuit unconstitutional
HARVARD LAW SCHOOL Professor Charles Nesson has raised the stakes on the MAFIAA Big Music recording companies in their lawsuit against Joel Tenenbaum by arguing that the litigation is an abuse of federal process and the US statute it relies upon is unconstitutional.
Defendant Tenenbaum was a teenager when he allegedly downloaded just seven tunes over a Peer-to-Peer (P2P) file sharing network, for which the recording company plaintiffs have sued him in US federal court for copyright infringement under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.
Over the course of years of litigation, during which he represented himself pro se with the help of his mother, Tenenbaum has filed a set of counterclaims against the music company plaintiffs, which he is pressing to have tried before a jury, and he also seeks to tack on the RIAA as a counterclaim defendant. It is in this context that Harvard Law School appears.
On their bog, Professor Nesson and law students Shubham Mukherjee and Nnamdi Okike link to the court filings and excerpt their reasons for aiding Tenenbaum with his defence:
"The Recording Industry Association of America (RIAA) is in the process of bringing to bear upon the defendant, Joel Tenenbaum, the full might of its lobbying influence and litigating power. Joel Tenenbaum was a teenager at the time of the alleged copyright infringements, in every way representative of his born-digital generation. The plaintiffs and the RIAA are seeking to punish him beyond any rational measure of the damage he allegedly caused. 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."
To help Tenenbaum defend his counterclaims, Professor Nesson and his Cyberone team filed a response opposition to plaintiff's motion to dismiss, in which they charged that the federal law upon which the plaintiffs have hung their complaint is essentially a criminal rather than civil statute, because it seeks to punish those who fall afoul of its provisions with minimum statutory penalties that are very far out of proportion to actual damages.
A crucial distinction between criminal law and civil law is that criminal statutes impose penalties intended to punish offenders for crimes against society, whereas civil statutes impose remedies to equitably redress damages caused by one private party to another.
That the penalities specified by the statute at issue are excessive is supported by the facts that, while the market value of a song is 99 cents on Itunes, or $6.93 for seven songs, the statutory penalties are a minimum of $750 per song, rising to a maximum of $150,000 per song for copyright infringement " committed willfully."
In his filing, Nesson argues that these penalties are excessive because that statute would be "wholly analogous" to a traffic law that provides the following penalties for speeding:
(1) a $750 fine for every mile per hour (mph) over the speed limit, increasing to $150,000 per mph over the speed limit if the speeder knew he was speeding;
(2) the fines are not publicised and few drivers know they exist; and
(3) enforcement is not by the government but by a private 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."
Nesson therefore contends that, if the law in question is essentially criminal rather than civil in nature, then several judicial conclusions of law necessarily must follow, that is:
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Defendants are entitled to the due process accorded criminal defendants, including criminal procedure and right to a jury trial.
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Congress has violated the Constitution by puttng the prosecution of a criminal statute in the hands of private parties.
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Congress has violated the Constitution's separation of powers by requiring the courts to try cases according to inappropriate civil processes.
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Congress has violated the 5th and 8th Amendments to the Constitution by requiring “grossly excessive statutory damage awards.
Tenenbaum's legal advocates summarise their prayer for relief from the court as follows:
"Joel seeks damages to compensate for the actual damage RIAA has done to him and his family. He claims the right to trial by jury including the right to offer proof and argument to the jury about what is right and what is wrong on both sides of this case. In the face of the onslaught the plaintiffs have imposed and are continuing to impose upon him he seeks justice from both judge and jury.
"At core his defenses and counterclaim raise a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice."
The US District judge presiding over this case of the MAFIAA versus Tenenbaum might or might not find these arguments persuasive, but in either event it seems inevitable that the outcome will be switched to the US Circuit Court of Appeals and perhaps even to the US Supreme Court. If so, this case could have important and very far reaching consequences.
If Nesson's constitutional argument eventually prevails in this lawsuit, it just might put the recording industry MAFIAA out of its presently legal copyright extortion business forever.
And in a country where unscrupulous lobbyists legally bribe lawmakers with 'campaign contributions' to routinely purchase laws that disproportionately favour the interests of amoral and immortal corporations over the values and needs of its people, and where obscene profits are privatised by the very rich while losses are socialised and extracted from the population through taxation and monetary inflation, it's immensely satisfying to see someone fighting back against the injustice of it all. µ
L'Inqs
Cyberone
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Excellent political commentary on the MafiAA and the current situation.
Yeah, piracy is so much more important than, say, rape, drugs or murder.
Dealing with piracy is even more important than this bank crises thingy. Who knows ? It may be because of piracy that all that money got lost in the first place.
Once we get rid of piracy, it'll be paradise, man !
So yeah, hang the pirates !

</sarcasm>
Paul is obviously either an RIAA street thug or a very good troll. Next we may see his Capo or Underboss.
Wow Paul. I bet you've never ran a red light either. People that download music illegally aren't murderers, or armed robbers, so they shouldn't be prosecuted like one. Maybe the RIAA should go to China and Thailand and enforce their copyright laws there because those countries make BILLIONS of illegal copies of American music, movies, and software, and don't pay a thing to anyone. If the all the major labels, and movie studios were in that bad of shape from all of this pirating they wouldn't be in business anymore. Instead, the CEO's now have to settle for a 100 foot yacht instead of the 150 footer they wanted. The one thing thats crippled the music industry in America is iTunes. iTunes has given society this idea that all songs are worth less than a dollar. In actuality the amount of money that major labels spend now a days to make a record costs anywhere from 20 grand to over a million dollars. 20 or even 10 years ago record labels were literally pissing money at artists because they knew that they would make their money back. The only way to get music back then was to go out and buy a physical piece of media. The labels weren't smart enough to see that the internet was going to revolutionize the way people acquire music. Can't say I feel bad for Britteny Spears, or Jay Z, for all of their lost record sales due to piracy. They still seem to be doing OK.
I was wondering for some time why the MAFIAA is going after small universities, but avoided Harvard Law School (well, I knew the answer). Now that Harvard is actually hitting the MAFIAA, things are quite interesting. Perhaps the entire Harvard University could investigate how much harm the MAFIAA has done to research and education, the Internet and our freedoms (and I am not talking about being free as a "pirate"). It would also be worth a few doctor theses to investigate the connection between the MAFIAA, the "news" media, ISPs and politicians (and then we may finally see the law enforced, right?). I hope other universities and their students join Harvard.
Would you please publish your law credentials for us all to see? I believe you need to do this so we may judge for ourselves who is the best qualified to makes the assertions you did: a Harvard Law Professor or, well, you.
RIAA acts like a rabies infected dog which says it protects owner by biting all people around! I think musicians (dog owners), should put to sleep (sue RIAA) for terrorizing society. We need to see contract between musicians and RIAA about public relations.
"the constitution is a remnant of the horse and buggy days"
-fdr

"the constitution is just a d*mn piece of paper"
-gwb

let it go, let it go, let it go...
.
Paul,
if the kid broke a criminal law, then he should be tried as a criminal, NOT as a named party in a lawsuit. Meaning that the local DA and police should be across the aisle from him, not the record company or RIAA lawyers. Yeah, so go find yourself a DA who's gonna prosecute a kid for stealing 7 songs off the Internet, then find a Mayor who's gonna let his Chief Of Police go and arrest said perpetrator in front of the news cameras. Good luck with that.
The RIAA and MPAA make it sound as if money is being deprived of the artists when in fact the larger impact of revenue lost ,if any, would line the pockets of administration and management not artists.
The very deceptive tactics that both Industries have used to "prove" theft and loss are highly suspect ,inconsistent and applied at will.
A counter suit should be filed against them for all the "man hours lost" and the inconvenience they have caused with there bogus and high pressure tactics upon the Universities and other Schools.
What other industry has this power over congress to do it's bidding in such a ridicules way?
I am a law biding citizen and this concerns me that civil cases can be moved to criminal courts just because of a large campaign contribution.
Maybe the money has become so much that what is right and what should be done is no longer a concern of the law makers. The law has become the way of the highest bidder.
And to exact such penalties for such a small crime, what will be next, death for shop lifting.
Well done. Could not have said it any better myself.
Paul is misunderstood.

He's obviously a zombie, risen from the dead from the Dickensian days when a person was hung for stealing a loaf of bread. And typical of the rabble from those times, illiterate in the sense of being unable to read and comprehend.

His next post will undoubtedly advocate burning witches.
I'm genuinely interested in this. Please keep us updated.

Thanks for the great article. This one stands out.
The judiciary has a pro tanto obligation, at best, to censure injustice proportionately; circumstance described herein, deems these particular litigations as an abuse of court. Justice for our society will be served, when the moot is met with mete. I wish HLS, et al. well. Here is no need for anyone to swear. Off you go riddances.
I think it is YOU that needs to get real! I have no problem with punishing criminals, but your idea of real is unrealistic. The day you agree to pay a $30,000 fine and serve 3 months in jail for a speeding ticket you receive for driving 3 miles an hour over the limit... and that a private company can spy on you 24/7 without proper authorization to catch you speeding at any time.... then and ONLY then would your "$10,000 fine and 6 months in jail" be realistic.
I'm astounded at the myopic stupidity of "Paul", it's idiots like him that make this world a worse place unless he's being profoundly ironic in which case I apologize.
This post is lengthy but I've reached my internet cretin limit for the day.

A couple of basic questions to consider next time before you continue on your rampage of idiocy. 
Do you understand what an unjust law is? Do you know the basis and development of copyright over the last century in the US? 
Do you even understand it's purpose and let's not even start with the very basic concept of the punishment fitting the crime if indeed copyright infringement is a "crime" in the way you assert under civil circumstances? 

It's as if you completely ignored the very valid claims of a Harvard law professor but instead regurgitate the propaganda that's been drilled into your head. You make absurd assertions without any from of reasoning. 

"There is nothing unconstitutional about the law" 

Really how do you come by that assertion in light of the reasoning above? Somehow you assume you know more than legal experts without any counter argument or reasoning at all. I assume and have you not read the four points above? Maybe you have difficulty with basic reading?

"Law abiding citizens are not going to allow pirates to go unpunished." 

Last time I checked it wasn't "law abiding citizens that were "punishing" "pirates" nor was it their collective responsibility under copyright. 

"We have laws to maintain order in society." 

So you're implying piracy (copyright infringement) results in civil disorder? Evidence or research for assertion please, what kind of disorder, is it disorder to gain access to culture, is society crumbling, is the sky falling? 

"Those who chose to disregard the laws of society go to jail and pay stiff fines, as they should." 

This statement could only be made by a simpleton as it completely ignores the law as an interpretative medium involving courts and judges, the nature and history of civil disobedience concerning unjust laws, implies the imposition of stern and strict punishment no matter the infraction nor the law involved and adds a moral imperative at the end which is completely unjustified. Ethics and law are not always complimentary.

"It's time to stop bashing the laws or those who enforce their copyright under the law." 

Why not? By your logic we should accept any and every form of treatment without rationalization just because it's the law? All laws should be blindly accepted and followed? 

"The laws are not going to change to allow piracy." 

Again why shouldn't they? Why should we allow big business to maintain a parasitic monopoly on culture?

"In fact more laws are being passed around the world almost weekly to punish pirates." 

Do you understand the basis on which these laws are passed, where they originate and on behalf of whom? Here's a few; undemocratic international treaties, corruption, political lobby groups and special interest.

One would prefer that it's time for all the idiots to SHUT UP.
paul, you are obviously rather disconnected from reality. $10,000 is amazingly excessive. even $100 seems too much, but it would be more reasonable considering the 'crime'.
You miss the entire point. 

"Let's GET REAL
The kid illegally downloaded music. Under the law that is piracy and he should be fined $10,000 per copy as provided by law and do six months in jail."

Total BS. The "Law" is Constitutionally bound to be fair and reasonable. If you steal a CD off the shelf of a brick and mortar store you will not be paying a 10k per song fine dumbass. The illegal manipulation of the criminal justice system needs to be stopped and the corporations doing it should be held accountable...the only people needing jail time and fines are the RIAA and their scumbag attorneys....and the giant douches like you that cant see the obvious.
Can only assume that the about comment is from a corporate stooge. 
Seven tracks copied with a market value of less than $7 warrants a $70,000 fine and 6 months in prison?
That is constitutional is it? Maybe in China perhaps. What do you get for downloading an entire album then, Einstein, a death sentence?
Quite clearly you work for RIAA or wrote these remarks from inside a 'secure unit'.
Paul: Have you considered the financial impact of your zeal for enforcing this law? If an estimated 10 million illegal downloaders (a conservative estimate) spend 6 months each in jail (that's 5 million person years), at $10,000 per year per person (a very conservative estimate, as we would have to build lots of new jails), you are looking at a cost of $50,000,000,000. I hope you don't mind paying more taxes!
You're a 'tard... I agree stealingis wrong. Sorry, but if I was to go into a store and steal a $15 dollar music CD it would be looked at as petty theft and probably a misdemeanor. I may spend a few hours at the local jailhouse and released (without bail) within a few hours. Would I be charged $10,000 for each of the 7-10 songs on the CD? The store would probably let me pay for it and go without even involving the cops if I asked them to let me do that... If the guy isn't trying to make money off of the songs he downloaded, I say charge him the worth of each song ($.99) and be done with it.

The RIAA are truly a bunch of extortionists who have made millions, if not billions, off the works of the musicians without fairly compensating them...

Oh yeah, did I mention that you're a 'tard?
While I agree with your description of the US, we aren't the only ones like that *cough UK Australia cough*.

At the moment, I'd rather live here than in the UK, and due to recent events, here rather than in Australia. I still wouldn't mind being in a few other places instead...
The kid illegally downloaded music. Under the law that is piracy and he should be fined $10,000 per copy as provided by law and do six months in jail. There is nothing unconstitutional about the law, no matter how much some in the media bash the RIAA, MPAA or any other copyright holders.

Law abiding citizens are not going to allow pirates to go unpunished. We have laws to maintain order in society. Those who chose to disregard the laws of society go to jail and pay stiff fines, as they should.

It's time to stop bashing the laws or those who enforce their copyright under the law. The laws are not going to change to allow piracy. In fact more laws are being passed around the world almost weekly to punish pirates. 

One would offer that it's time for the pirates to GET REAL.
Need to add more to car-speeding analogy:
• RIAA claims in general as all roads belong to RIAA, and no RIAA affiliations signs posted on roads where speeders prosecuted. Therefore all free roads should be converted into toll-roads and revenue should flow directly to RIAA even RIAA haven’t built them or bought them.