As the Recording Industry Association of America continues to file lawsuits against thousands of people, a growing number of lawyers are rising up to fight what they consider illegal tactics of the association.
Harvard Law School professor Charles Nesson filed a counterclaim against the RIAA last week on behalf of Joel Tenenbaum, a Massachusetts man being sued by the association for copyright infringement. The counterclaim alleges that the association’s lawsuits against possible copyright infringers are unconstitutional.
Nesson, who is representing Tenenbaum pro bono, said charges are brought against possible copyright infringers under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. The law, Nesson said, is essentially a criminal statute, and it is unconstitutional to apply the law in a civil case, which the RIAA is doing.
Matt C. Sanchez, one of the four students in Nesson’s Internet law class who are helping him with the case, said a distinction exists between damages in a civil case and damages in a criminal case.
“Damages in civil cases are about if you hurt someone, you make them whole,” he said. “But the RIAA is using litigation to say ‘if you do this you are going to be punished.’”
According to Nesson, criminal law – not civil law – is about punishment, and the record companies are seeking to punish Tenenbaum.
“The lawsuit is completely criminal in nature,” Nesson said. “The damages are completely out of proportion to any actual harm that was caused.”
Nnamdi Okike, who is also one of Nesson’s students involved in the case, said when the record companies file suits for copyright infringement, they can chose to seek either actual damages or statutory damages.
In civil cases, Okike said, plaintiffs typically seek actual damages, which is only the dollar amount the infringed product is worth. Statutory damages under copyright law, Okike said, range from $750 to $30,000 per copyrighted work for an inadvertent infringement, and up to $150,000 per copyrighted work for a willful infringement.
If Tenenbaum’s alleged acts are found to be willful, he could face statutory damages of more than $1 million, according to a motion Nesson filed.
REASONS FOR OPPOSITION? Excessive monetary damages ? The RIAA’s amount of legal power ? Limited constitutional rights for defendants ? Inability to prove distribution of files |
Sanchez said because songs are available for 99 cents on iTunes and other legal music downloading sites, the loss per song that record companies face is likely between 10 and 60 cents.
“The amount of damages can go very, very high, to a point where the numbers are very disproportional to the actual damages,” Okike said.
Because of the discrepancy between the amount of damages sought and the amount of actual damage suffered, Okike said using the statute in a civil case is unconstitutional according to due process.
“These suits represent an abuse of judicial process,” Sanchez said. “The RIAA is going into litigation saying, ‘…We want to scare people, so that no one ever file-shares or illegally downloads anything again.’”
Sanchez said because of the RIAA’s intentions to scare students and other individuals out of illegally downloading, the record companies are not interested in giving individuals a fair trial. Sanchez alleges that the companies are trying to hit Tenenbaum, who is being sued for infringement of seven songs, with a multimillion dollar suit to serve as an example to illegal downloaders everywhere.
Nesson also documented the motivation behind the RIAA’s litigation process in a motion to the court.
“The plaintiffs and the RIAA are seeking to punish (Tenenbaum) beyond any rational measure of the damage he allegedly caused,” Nesson wrote in the motion. “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.”
Lory Lybeck, an attorney for the Seattle law firm Lybeck Murphy, said if the civil lawsuit hinges on a criminal offense, the defendants should be allowed constitutional rights of criminals, such as the right to a trial in front of a jury or the right to a court-appointed attorney.
Lybeck was the attorney in last year’s high profile case against the RIAA in which a Portland woman was found innocent of the infringement charges. Lybeck also said he helped five University students who were originally subpoenaed by the RIAA avoid the charges because of what Lybeck referred to as their “obvious innocence.”
Okike said many people are forced to settle with the record companies because they are not offered the same benefits that criminal defendants are offered. What is unfortunate, Okike said, is many of these individuals would have a chance to win in court if they could afford to hire attorneys.
Sanchez said the issues being raised boil down to a matter of fairness. “Regardless of the merits of filesharing, a defendant must have a fair trial and a fair penalty,” he said.
Sanchez said one of the reasons why defendants could have a chance to win in court is because of the record companies’ inability to prove infringement actually occurred. Sanchez said two types of copyright infringement exist: reproduction and distribution.
Reproduction, Sanchez said, is the act of copying a copyrighted work. Distribution is the act of illegally distributing a copyrighted work to others.
When the record companies are suing because files were available on peer-to-peer networks, they are suing for distribution, Sanchez said. But he also noted that the courts are currently debating whether making a file available is a violation of copyright law.
The discrepancy exists, Sanchez said, because the record companies can only prove if files were made available for others to download the copyrighted work. Given available technology, Sanchez said the record companies cannot prove if someone actually distributed the copyrighted work.
The problem with the “making it available” claim, Lybeck said, is that people can fail to have the file sharing feature on their computer disabled and can be sued as a result. Lybeck explained that such inadvertent file sharing is not a violation of copyright law because the distribution cannot be proven.
Lybeck said that during the past five years, many problems have existed within the RIAA’s litigation processes. Because their process is so sweeping, he said, there is a lot of room for error in their information-gathering techniques.
Lybeck explained that originally, the RIAA subpoenaed the University for information about 22 students, but because of issues such as two students being assigned to one residence hall room, the RIAA changed the subpoena and asked for personal information of 17 students.
Lybeck said he sees Nesson’s work as a positive movement to examine and crack down on the RIAA’s techniques.
Okike said he hopes the work on the Tenenbaum case sheds light on the RIAA’s aggressive and abusive judicial processes.
“We are optimistic and we are looking forward to changing the tide of how record companies go about this,” he said.
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