Friday, October 31, 2008

RIAA lawsuits 'unconstitutional', says someone who knows what they're talking about

The RIAA's attempts to blackma- sorry, that's such an ugly word, isn't it? Shall we call it encourage? - filesharers to pay huge 'fines' for alleged misuse of copyright material has been called an abuse of law by Harvard law professor Charles Nesson. He reckons that not only is the law unconstitutional - making a crime out a civil wrong - but that the RIAA should be punished for abusing the law:

In essence, Plaintiffs are using the prosecution of Joel Tenenbaum to extort other accused infringers: the accused are told to either pay the settlement, or else be exposed to the protracted litigation and potentially astronomical damages that Joel now faces. See Milford Power Ltd. Partnership by Milford Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass. 1996) (holding that "the essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding"). The intimidation tactics are working: of the 30,000 accusations the RIAA has leveled against individuals, only a single defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a new trial).

The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."

It's almost heartbreaking - the very efficiency with which the RIAA has been dipping into the pocketbooks of Americans being used as evidence of how much it's abusing its power. Almost heartbreaking; but at the same time, kind of funny.

Nesson made his comments in a legal defence filed in support of Joel Tenenbaum who's counterclaiming against the RIAA. If we were music business executives, we'd be very, very nervous about what losing this case would mean for the entertainment industry - given that they've taken money off 30,000 people using these rules and just repaying those people would be costly. If 30,000 sued for damages, it could be wipe-out bad. And given that the RIAA squeezed them, there's no reason to expect they'd feel moral compulsion not to squeeze back, is there?