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Fiery Debate Over Song Swapping Lawsuits

November 17, 2008

A Harvard Law School Professor has started a constitutional assault against a federal copyright law at center stage of the music industry’s courtroom campaign against people who share songs online.

The music industry has gotten payments from thousands of song-swappers since 2003.

The professor, Charles Nesson, has come to the defense of a Boston University graduate student targeted in one of the music industry’s lawsuits.

By taking on the case, Nesson wants to challenge the basis for the suit, and all others like it.

Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it allows a private group, the Recording Industry Association of America, or RIAA, to carry out civil enforcement of a criminal law.

Nesson, the founder of Harvard’s Berkman Center for Internet and Society, said he wants to “turn the courts away from allowing themselves to be used like a low-grade collection agency.”

Nesson is famous for defending the man who leaked the Pentagon Papers and for consulting on the case against chemical companies that was depicted in the film “A Civil Action.”

His challenge against the music labels, made in U.S. District Court in Boston, is one of the most publicized attempts to stop the industry’s flurry of litigation.

Nesson is representing Joel Tenenbaum, who was among dozens of people who appeared in court in RIAA cases without legal help.

The 24-year-old Tenenbaum is a graduate student accused by the RIAA of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004. He offered to settle the case for $500, but music companies wanted $12,000.

The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation.

If the allegations are found to be true, Tenenbaum could be forced to pay $1 million in damages.

The music industry group has said in court documents that its efforts to enforce the copyright law is protected under the First Amendment right to petition the courts for redress of grievances.

Cara Duckworth, a spokeswoman for the RIAA, said her group’s pursuit of people suspected of music piracy is a fair response to the industry’s multibillion-dollar losses since networks made it easy for people to share massive numbers of songs online.

“What should be clear is that illegally downloading and distributing music comes with many risks and is not an anonymous activity,” Duckworth said.

Nesson is scheduled for a pretrial conference on Tuesday, ahead of a trial set for Dec. 1.

Entertainment attorney Jay Cooper, who specializes in music and copyright issues at Los Angeles-based Greenberg Traurig, is convinced that Nesson will not persuade the federal court to remove down the copyright law.

He said the statutory damages it awards help recording companies to get compensation in cases where it is difficult to prove actual damages.

In court filings in Tenenbaum’s case, record companies contend that the damages allowed by the law are “intended not only to compensate the copyright owner, but also to punish the infringer (and) deter other potential infringers.”

As an alternative Nesson believes the industry could develop new ways to prevent copyright material from being shared illegally. One idea would be to bundle music with ads and post it for free online, he says.

“There are alternative ways,” he said, “of packaging entertainment to return revenue to artists.”

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