Tuesday, November 18, 2008

How One Law Professor Is Fighting the Music Industry's Anti-Piracy Campaign...

Ever since Napster became popular almost 10 years ago, the Recording Industry Association of America (RIAA) has been bringing lawsuits left and right. First they brought suits against the companies who created the software, like Napster and Kazaa, then, after being rebuffed by the courts, began suing individuals who they accused of piracy.

That practice of suing individuals may be coming to an end. Charles Nesson, a law professor from Harvard, has taken a case where he hopes to directly challenge the RIAA's ability to bring such lawsuits.

As this Wired article describes, Nesson argues that 1) the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the RIAA - carry out civil enforcement of a criminal law, and 2) that the RIAA "abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court".

Nesson has said in an interview that his goal is to "turn the courts away from allowing themselves to be used like a low-grade collection agency."

Studies have shown that the vast majority of internet users have, at some point, downloaded copyrighted material. Many believe that the RIAA's strategy was merely to intimidate people with a few cautionary tales of lawsuits in order to deter them from pirating even more music. That intimidation is clearly evident in the following statistic: more than 30,000 complaints have been brought against people accused of sharing songs online, yet only one case has gone to trial; "nearly everyone else settled out of court to avoid damages and limit the attorney fees and legal costs that escalate over time".

Does the argument have a chance at succeeding? It's increasingly likely. There has quietly been a wave building of legal developments against the RIAA's anti-piracy tactics over the past two years. One federal judge has held that the constitutional question is "a serious argument", two highly regarded law review articles have said that it is outright unconstitutional, and there are three actual court rulings that have said that it might be unconstitutional.

So could Professor Nesson's case be the tipping point from which the RIAA's entire house of cards crumbles? Probably not. Even if he wins, the RIAA is sure to simply modify its approach and find some other legal target to go after. Nevertheless, Nesson should be applauded for his efforts. Ethically, the RIAA's tactics are being rebuffed on several fronts, and that is certainly a positive development; but, ultimately, the issue of file-sharing on P2P networks will not be resolved until there is actual legislative reform of copyright law.


At 12:19 PM, Anonymous Anonymous said...

The only realistic way to make any impact on file-sharing and illegal downloads is to offer the perpetrators a viable alternative.

Many people pay to download music because it's easier and safer, so if you can make it easier, safer and free (or ad-funded)- more people will use legal sites like We7's free ad-funded model.

Steve Purdham
CEO - We7

At 12:51 PM, Blogger Robert J. Domanski said...

I very much agree with you, Steve, in terms of finding viable business models.

I still maintain though that reform of copyright law is absolutely necessary 1) to better protect artists' rights over their works, 2) to better protect existing consumer rights from overzealous commercial firms, and 3) to preserve public "commons" and maintain the culturally invaluable Fair Use Doctrine of copyright law.


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