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Friday, November 28, 2008
How I See It
The RIAA’s prosecution of copyright law is unconstitutional
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The Recording Industry Association of America (RIAA) is in the process of bringing to bear the fruit of its lobbying influence and the full brunt of its litigating power upon a defendant, Joel Tenenbaum, whom I — along with some of my students at Harvard Law School — have decided to represent pro bono.
Joel Tenenbaum, who was a teenager at the time of the alleged copyright infringements, is being sued for downloading seven songs seven years ago from KaZaA, a file-sharing network composed of millions of his peers doing likewise. The RIAA will seek to prove that Joel downloaded those songs “willfully” and must therefore pay up to $1,050,000. Joel has already been interrogated by the RIAA for nine hours in a forced deposition; been made to endure the depositions of his mother, father, sister and friends; and may be compelled to submit his current computer, which is not even the machine on which the original copyright infringement was alleged to occur, to a RIAA-retained third party for complete imaging and forensic analysis. All this for the alleged download of seven songs.
We believe, and are asserting legally by counterclaim, that the RIAA litigation campaign against Joel and the millions of his generation like him is an unconstitutional abuse of law. Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs on the order of $3,000 to $7,000 in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of a federal court.
The intersection between technological norms and law that governs social norms is one of the most academically interesting and practically frustrating issues professionals have grappled with in a long time. Tenenbaum is, in every way, representative of his born-digital generation. The tension remains that our antiquated legal system has not caught up to the social reality of digital natives, a term my colleague John Palfrey coined to describe the generation that grew up immersed in digital technologies and for whom a life fully integrated with digital devices that are, by design, free and open is the norm. Surely, just because the laws of copyright have not yet fully addressed the ubiquity by which protected information is readily — and freely — available on the Internet, it does not make good law moot. But this case illustrates a civil sea change rooted in the transformative nature of technology, of code as law. Better understanding of how today’s generations interact with digital media will help us shape our regulatory and educational frameworks in a way that advances the public interest. Justice demands, however, that one man not be pilloried without the process due him as a civil right, without good counsel, and without the most rigorous proof that he has committed the wrongs alleged.
Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and founder of the Berkman Center for Internet & Society.
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