Charles Nesson, a Harvard Law School professor, has launched a constitutional attack against the federal copyright law at the heart of lawsuits brought by the Recording Industry Association of America, or RIAA, against people who share songs online. Nesson initiated his challenge to the law after a federal judge in Boston asked his office to represent Joel Tenenbaum, a Boston University graduate student accused by the RIAA of downloading at least seven songs and making 816 songs available for download via the Kazaa file-sharing network. Tenenbaum offered to settle the case for $500, but the music companies rejected the offer and demanded $12,000 instead.
In defending Tenenbaum, Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it allows a private party, the RIAA, to carry out the civil enforcement of a criminal law. Nesson also argues that the Act, in setting damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation, violates the Fifth and Eighth Amendments by requiring grossly excessive statutory damage rewards.
The RIAA has stated in court documents that its efforts to enforce the copyright law are protected under the First Amendment right to petition the courts for redress of grievances. A spokeswoman for the RIAA, Cara Duckworth, ignored the questioned status of the laws the RIAA utilizes and insisted: “What should be clear is that illegally downloading and distributing music comes with many risks and is not an anonymous activity.” She went on to assert that threats of $1 million fines were a fair and just reaction to the alleged crimes being committed. Thus the RIAA seems to believe that suing people suspected of music piracy for hundreds of thousands of dollars is a fair response to the industry’s losses since peer-to-peer networks began making it easy for people to share vast amounts of music online.
Nesson’s belief that the damages the Act authorizes are unconstitutionally excessive has been championed by at least one federal judge. In September, U.S. District Judge Michael Davis set aside the nation’s first and only federal jury verdict against a peer-to-peer file sharer. In that ruling, Davis declared a mistrial in the case of Jammie Thomas, a Minnesota woman accused of making songs publicly available on the file-sharing network Kazaa. In setting aside the $220,000 penalty levied against Thomas for copyright infringement, Davis criticized the award as exorbitant and urged Congress to change the law. He stated, “While the court does not discount plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs – the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than 500 times the cost of buying 24 separate CDs and more than 4,000 times the cost of three CDs.”
Nesson also criticizes the RIAA for abusing the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court. Of the 30,000 people that the RIAA has accused of illegally sharing music, only one case has gone to trial. Nearly everyone else settled out of court to avoid having to pay damages and attorneys’ fees. Nesson believes that there are better ways to prevent copyrighted material from being shared illegally. One solution he proposes is that record companies bundle music with ads and post it online for free. Whether or not this would eventually be a viable solution is not Nesson’s principal concern. Nesson has stated that his ultimate goal is to ensure that legislation “turns the courts away from allowing themselves to be used like a low-grade collection agency.”
While the penalties authorized by the Act in question are certainly excessive, there still needs to be some anti-piracy law in place to punish those who share songs illegally. While it may be said that such excessive awards are needed to deter others from pirating music, a jury award that would effectively make each song a $9000 violation, as in Thomas’ case, is clearly exorbitant and unfairly punishes the small percentage of piraters the RIAA chooses to pursue.
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