Are the RIAA about to be put on the back foot

Ray Beckerman (as always) has some interesting news on the RIAA's pursuit of tens of thousands of individuals. Two stories in particular I would draw your attention to are

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Announcement from Harvard Law School Cyberlaw Students about SONY v. Tenenbaum

Received this interesting announcement from "CyberOne", the cyberlaw students at Harvard Law School, about SONY BMG Music v. Tenenbaum:

LEADING INTERNET LAWYER TO ARGUE COPYRIGHT THEFT DETERRENCE ACT UNCONSTITUTIONAL

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: http://blogs.law.harvard.edu/cyberone/riaa/.

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CyberOne is a course for Harvard Law School students learning to make things happen in a cyber world. Projects include furthering work already ongoing, as well as new inspirations expressing our growing ability to use the tools of cyberspace to connect in creativity and peace. Professor Charles Nesson is the William F. Weld Professor of Law at Harvard Law School and Founder of the Berkman Center for Internet & Society."

See also http://recordingindustryvspeople.blogspot.com/2008/10/prof-nesson-of-harvard-law-school-takes.html at Beckerman's blog and http://blogs.law.harvard.edu/cyberone/riaa/at Harvard's Berkman Center for more on this story.

The second really interesting development is that one of the judges who has been leaning in the RIAA's favour for the past 5 years has apparently told them off for acting unethically.

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Judge Gertner admonishes RIAA lawyers to stop 'bankrupting' pro se defendants with 'formalities' in Boston consolidated cases

Thanks to a friend of our blog, who sent me this transcript.

In the massive consolidated Boston case, termed London-Sire v. Does 1-4, where Judge Nancy Gertner has been presiding over 5 years worth of default judgments and forced settlements, we have learned that the Judge held a conference on June 17th covering a number of the cases.

The RIAA lawyers were present.

No lawyers were present for any of the defendants.

A few of the defendants were in the courtroom, but without lawyers representing them.

Among the remarks made by Judge Gertner:

-"There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources." page 8

-"The law is ... overwhelmingly on their [the record companies'] side." page 8

-"Sometimes they answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there's a negotiated settlement..." page 9

-"It simply doesn't make sense to fight them as an individual, [pro] se..." page 9

-"...counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." page 11

Transcript of June 17, 2008, conference attended by RIAA lawyers and pro se defendants

[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]"