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October 31st, 2008

TechDirt: Big Guns Come Out In Effort To Show RIAA’s Lawsuits Are Unconstitutional

(Via Techdirt.)

Big Guns Come Out In Effort To Show RIAA’s Lawsuits Are Unconstitutional: “People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It’s not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it’s been brought up in court, the arguments haven’t been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it’s been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA’s strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA’s efforts in a court filing, where it’s noted that the very basis for many of the RIAA’s lawsuits is very likely unconstitutional.

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called ‘theft’ in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That’s because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:


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 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 an objective judicial body.

Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.


This Court should exercise its inherent power to allow
background image redress to Joel Tenenbaum for Plaintiffs’ abuse of law and
federal civil court process. As detailed throughout this brief,
Plaintiffs are using any and all available avenues of federal
process to pursue grossly disproportionate — and
unconstitutional — punitive damages in the name of making an
example of him to an entire generation of students.
The case at hand warrants the use of inherent federal power
not just because of what Plaintiffs are doing to Joel Tenenbaum
in this Court, but because of the manner in which Plaintiffs are
abusing the federal courts all across the country. Plaintiffs
have pursued over 30,000 individuals in the same way they have
pursued Joel….
For these 30,000
individuals, Plaintiffs have wielded federal process as a
bludgeon, threatening legal action to such an extent that
settlement remains the only viable option. Joel Tenenbaum is
unique in his insistence, in the face of it all, on having his
day in court. The federal courts have an inherent interest in
deciding whether they will continue being used as the bludgeon
in RIAA’s campaign of sacrificing individuals in this way.

The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a ‘perversion of lawfully initiated process to illegitimate ends,’ and citing the case law that suggests such behavior should be punished by the courts: ‘One who uses a
legal process … against another primarily to accomplish a
purpose for which it is not designed, is subject to liability to
the other for harm caused by the abuse of process.’

And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA’s own words against it. First, the writers note (and cite the relevant cases) that even if there is a ‘proper purpose’ behind the filing, it’s an abuse of process if the primary purpose in filing the lawsuit is different than the ‘proper purpose’ behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its ‘deterrence’ educational program. From deterrence, Nesson shows how it’s actually used as more of a bludgeon to get students to settle, which is clearly not the ‘proper purpose’ of 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.’

This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees’ nest of Harvard Law.

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