Blown To Bits

Guns A-Blazing in the Copyright Wars

Wednesday, October 29th, 2008 by Harry Lewis

The RIAA (Recording Industry) went after Joel Tenebaum, alleging that he downloaded seven copyrighted songs while he was a teenager. Thousands of teenagers get similar notices and pay up. Joel fought back, and the case has reached an extraordinary juncture. Joel is represented by Charles Nesson of Harvard Law School, Founder of the Berkman Center. The defense is arguing that the statute under which he is being charged is unconstitutional, among other reasons because the penalties are so high that it is essentially a criminal law in the clothing of a civil law.

Here is the news release I just received:


Is the Constitution ready to embrace the reality of the Internet?

Cambridge, MA (October 2008) – The Recording Industry Association of America (RIAA) is in the process of bringing to bear the full might of its combined lobbying and litigating power. And one defendant, Joel Tenenbaum, is fighting back with the help of his mother, a leading copyright and internet lawyer, and a Harvard Law School cyberlaw class.  What makes this counterclaim remarkable is not the legal tit-for-tat that is inherent in any contentious issue, but rather the fact that this legal team has taken its argument to the next level: constitutionality.

Joel is being threatened by the RIAA with punishment of more than a million dollars for downloading seven songs. Charles Nesson and his team of Harvard Law students are counterclaiming for abuse of process.  They argue that the statute, which mandates damages of up to $150,000 for each willful download, is unconstitutional.

But is the Constitution ready to embrace the reality of Internet?

Nesson’s team alleges that the RIAA is abusing law and the civil process of the federal courts. “At its core this counterclaim raises a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” says Nesson.¬† The counterclaim also alleges that the RIAA’s action in the name of “deterrence” constitutes an abuse of process used for the ulterior purpose of intimidating others by extreme example.

In the only previous situation in which an RIAA music-downloading case such as this has gone to trial, Chief Judge Michael Davis set aside a jury verdict of $221,000, declaring the statutory damage award to be “unprecedented and oppressive.”

Are there limits to how we deal with copyright in the age of ubiquitous information?¬† And that’s exactly the question they hope the courts will finally address.

For more information, please visit:


The filings in the case contain some pretty stirring language, for example:


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. To members of the born-digital generation, for whom sharing music on the Internet is as commonplace and innocuous as driving 60 in a 55 mph zone, the prosecution of Joel Tenenbaum and others like him is wholly analogous to this hypothetical. Congress lacks the constitutional power to delegate such a prosecutorial function to a private police, which is the role that the recording companies and its industry organization, the RIAA, is embodying.

3 Responses to “Guns A-Blazing in the Copyright Wars”

  1. Blown to Bits » Blog Archive » Hearing in Music Downloading Case to be Webcast Says:

    […] be able to view it via the website of the Berkman Center. This is the case (previously blogged here) in which Harvard Professor Charles Nesson is arguing that the copyright statute is […]

  2. Hobby Says:

    This is right here, in the present, not the future.

  3. Blown to Bits » Blog Archive » Department of Justice Supports the RIAA in the Tenenbaum Case Says:

    […] reported for the first time back in October on the case of RIAA v. Tenenbaum. The Recording Industries have taken one Joel Tenenbaum to task […]