The Final Nail: Record Labels May Be Sealing Their Own Coffins

It has been almost ten years since the Recording Industry Association of America (RIAA) brought a lawsuit against Napster on the grounds of copyright infringement. At the time it was considered unjust to allow citizens to "steal" music that rightfully belonged to recording artists and record labels. Now, nearly a decade later, it is a citizen who is claiming that the RIAA is unjust, and that such lawsuits are unconstitutional. Joel Tenenbaum, a 24 year old graduate student at Boston University, was charged with downloading seven songs from a file-sharing network in 2005 and, as a result, may be facing over $1 million dollars in penalties. On his side, however, is Harvard Law School professor, Charles R. Nesson. Probably most famous for his defense of Daniel Ellsberg in the Pentagon Papers Case of 1971, Nesson is the co-founder of the Berkman Center for Internet and Society, a Harvard Law School research center that focuses on the legal study of cyberspace. So, could this be it? Could this be the final nail in the music industry's coffin, as far as their attempts to hold on to legal ownership of recorded material goes? If the counterclaim that Nesson filed less than three weeks ago is successful in overturning the case against Tenenbaum then it could be cited over and over again in other cases concerning illegal music downloading, or "copyright infringement." So, provided that the decision comes back in Nesson's favor, the RIAA will have to seriously reconsider the way in which they attempt to prevent the public from downloading music for free. In order to better assess this case, as well as the possible legal ramifications that it could lead to, I searched through the blogosphere for relevant and intelligent posts. The first one that caught my eye, entitled "Effort to Show RIAA Lawsuits are Unconstitutional" was written by Brian Lee Cober, attorney at law, and posted on his blog "Musiclawyer Musings." In his article, Cober, who has an emphasis in music business, discusses what Nesson's arguments will most likely be in the case, based on statements that he has already made, and explains what exactly makes the RIAA's lawsuits unconstitutional. The next piece that I decided to analyze came straight from the source, The Harvard Crimson Online Edition. In it, Crimson Staff Writer, Helen X. Yang, examines the case in a very unbiased manner, providing plenty of insight as to what is at stake in her article, "Nesson, Harvard Law Professor, Sues RIAA." After reading both of these articles, I decided to comment on them in hopes of gaining even more information on the subject, as well as to express my own questions and opinions. Both of these comments are shown below.

"Effort to Show RIAA Lawsuits are Unconstitutional"
Comment:
First of all, I would like to thank you for discussing the legal aspects of this counterclaim lawsuit by analyzing what Nesson himself has said on the matter. It is clear by your post that you have a clear and intelligent understanding of this case, and you make it much easier for the layman to understand. I find it humorous that you observe how "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." Also, as I am sure you will agree, I find it to be quite commendable that Nesson took the offensive in seeking out a student from Boston University to represent. Before reading your article, I had not considered the broader implications involved with this case, and simply looked at it in terms of whether or not the record labels had the legal right to claim ownership of digital music files. Now that I take a step back, however, I see how dangerous it can be for the Court to "put 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." As we progress into the digital age it is important to recognize the "inherent dangers in allowing a single interest group, desperate in the face of technological change... to march defendants through the federal courts to make examples of them." I would like to ask you, however, what you think the RIAA should do about their current situation, given that they have lost billions thanks to the sharing of digital music files. Looking at the metaphor that Nesson gives about a ridiculous, and unjustly implemented speed limit, it is clear that the current system needs to change. Nevertheless, it is also apparent that some sort of regulations are necessary for speeding drivers, and the same may be true of file sharing, otherwise the music industry as we know it could fly off the road and burst into flames.

"Nesson, Harvard Law Professor, Sues RIAA"
Comment:
To start with, thank you for providing your readers with an extremely unbiased view of this case, which involves a professor from your own educational institution. From what I can see, the key concern in your article is not simply that the RIAA seems to be charging illegal music downloaders vast amounts of money, but WHY they are doing so. As you say, "According to RIAA spokesperson Cara Duckworth, the amount sought from Tenenbaum is undisclosed and left to the judge’s discretion, though Tenebaum may face over $1 million in penalties," and that is for downloading seven songs! The interesting part is that it seems fairly obvious to everyone involved that $1 million dollars is a completely unrealistic sum to charge considering the offense. Instead, the purpose of these outrageous numbers is to force those being prosecuted to settle out of court at a price which the RIAA can pretty much set at whatever they want. As you quote Nesson saying, "Often, the accused in copyright infringement cases do not understand the charges against them and cannot afford an attorney, so they pay the amount the RIAA demands without ever reaching court." Not only that, but they use these high numbers as a scare tactic, “The situation is absurd,” Tenenbaum said. “It was never about the money. It was about creating a scary situation to deter others." On the other hand, however, you point out that the music community has had to endure thousands of layoffs and billions of dollars in losses in just a few short years, primarily due to the exact kind of activity in which we found the defendant actively engaging. Given these facts, and that both sides seem to have legitimate arguments, do you think that this court case will result in any sort of a definite decision concerning the future of digital music downloading, and whether or not it is legal?