This is an entry from Charles Nesson’s blog. Nesson is a law professor at Harvard University, and he is defending a man named Joel Tenenbaum who was sued for file sharing. Nesson and Tenenbaum filed a countersuit against the RIAA, because the amount Tenenbaum would have to pay for damages would be over $1 million, which they believe to be unconstitutional. In the entry, Nesson criticizes the fact that in 1976, lawyers and lobbyists created laws for the future of digital media, and that we must still abide by those today. He is fighting not only the RIAA, but also the court system that is exerting power on behalf of the RIAA. Nesson believes that claiming high damages is abusing the law. He instructs us to, “Observe that the disproportion between actual damage caused by joel to the copyright holder and the damage mandated by the legislature to be given the copyright holder is in inverse proportion to the lobbying power of the copyright industry in the legislature compared to the lobbying power of joel and the teenagers like him who are meant to be frightened by the punitive damages being imposed.”
Nesson believes that people should legally be able to share music non-commercially, and that the public domain should consist of anything one can get for free on the Internet. He thinks that the RIAA is trying to “manipulate the public mind to equate file sharing with theft.”
I agree with Nesson on most of his points, and his ideas are probably the most important source to my paper. The laws relating to copyrighted digital files need to be changed, and lobbyists should not be involved. Right now, I believe that the RIAA is using the courts as its hitmen. The courts are intimidating teenagers and carrying out every one of the RIAA’s orders. This needs to be stopped, and fair practices need to be implemented; not the ones that rich copyright lobbyists push for. The people being sued need a voice, and Charles Nesson has bravely taken that role. The RIAA should not be using the courts to carry out an intimidation tactic, and the argument can be made that these cases should be tried in criminal, and not civil court.
Nesson believes that file sharing is not theft, which is his most debatable opinion. From the RIAA’s perspective, their music is being stolen. Are they guilty of manipulating us to believe this? Or are Internet discourse and a desire for free media guilty of making us believe that it isn’t theft? Both sides must be taken into account.
Even if file sharing is considered theft, though, the damages being claimed are way too high. This part of the law is definitely unconstitutional, and the laws need to be changed to accommodate today’s technology. I am rooting for Nesson’s success.
Title 18 U.S.C. 2314 provides criminal penalties for any person who “transports in interstate or foreign commerce any goods, wares, merchandise, securities or money , of the value of $5,000 or more, knowing the same to have been stolen, concerted or taken by fraud.” In this case, the federal government sought a conviction on eight counts of this offense. The counts arose from shipments of bootleg phonorecords sent from Los Angeles to Baltimore and Miami by the petitioner, Paul Edward Dowling. Dowling was also charged with copyright infringement, a conviction which he did not attempt to appeal. However, Dowling felt that the interstate transportation of stolen goods did not apply to his case, as the products that he transported were not stolen physical property, but the “wrongful appropriation of statutorily protected rights in copyright. When the Third District upheld his conviction, Dowling brought his case to the Supreme Court, who, in a six to three majority, reversed. In the opinion of the court, Justice Blackmun wrote “the Government’s theory here would make theft, conversion or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright.” He points out that the Copyright Act has its own term to define someone who misappropriates copyright: a copyright infringer. This criminal title carries its own felony penalties, and while “the Government’s theory of this case presupposes a congressional decision to bring the felony provisions of 2314…to bear on the distribution of a sufficient quantity of infringing goods simply because of the presence here of a factor- interstate transportation- not otherwise thought relevant to copyright law…the discrepancy between the two approaches convinces us that Congress had no intention to reach copyright infringement when it enacted 2314.” Blackmun suggests that this case “demonstrates anew the wisdom of leaving it to the legislature to define crime and prescribe penalties.” And while current music piracy can be (if amounting to over $1000 as designated by the NET act) a felony offense, this is not always the case, a point which the RIAA continuously ignores to further its anti-piracy scare agenda.