Anti-Piracy Statute Gets Challenged

A Harvard law school professor has taken on the defense of a 24-year-old Boston University graduate student who is challenging the constitutionality of a lawsuit filed against him by the Recording Industry Association of America. The suit seeks thousands of dollars in damages for the student’s alleged sharing of digitized music on a peer-to-peer network, and comes as colleges and universities are grappling with digital copyright enforcement regulations (pdf) written into the reauthorized Higher Education Act of 2008. The outcome could help clarify what restrictions libraries face in how they share and distribute digital media.

Alleged copyright infringer Joel Tenenbaum is accused of illegally downloading at least seven songs in 2004 and placing more than 800 music files on the Kazaa file-sharing service. The founder of Harvard’s Berkman Center for Internet and Society, Charles Nesson was appointed to Tenenbaum’s case last summer by U.S. District Court Judge Nancy Gertner after she discovered that her docket contained more than 130 defendants in RIAA lawsuits who lacked legal representation.

“The plaintiffs and the RIAA are abusing law and this court’s civil process,” Nesson argued October 27 in a court filing (pdf) backing Tenenbaum’s right to a jury trial in the matter. Nesson contended that RIAA is using civil action to enforce a criminal statute—the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which set the fine for unwittingly pirating a digital work at up to $30,000 for each offense.

Nesson also argued that RIAA is using the statute not for the purpose of recovering compensation for actual revenue loss but to make Tenenbaum into an “urban legend” whose successful prosecution would scare off future media pirating among the rest of his born-digital generation. When Tenenbaum offered to settle the case for $500, the music companies refused, demanding $12,000.

Cheryl Elzy, dean of Illinois State University Libraries and comanager of ISU’s Digital Citizen Project, is concerned about what effect this antipiracy case and others like it could have on libraries’ dissemination rights. “We don’t want a rollover effect to impact our ability to stream media,” she told American Libraries. “We want to be able to let the kinds of things that the library distributes come and go freely.”

However, the music companies aren’t giving up any ground, citing the First Amendment right to petition the courts for redress of grievances. RIAA spokesperson Cara Duckworth said the group’s pursuit of people suspected of music piracy is a fair response to the multibillion-dollar losses suffered by the music industry since peer-to-peer networks began making it easy for people to share massive numbers of songs online. “What should be clear is that illegally downloading and distributing music comes with many risks and is not an anonymous activity,” Duckworth told the November 14 Boston Globe.

But these lawsuits may not be the only way to deter piracy. Establishing a model for other post-secondary institutions, Elzy’s Digital Citizen Project uses education and research to discourage students from engaging in illegal file sharing. The task is a formidable one: In a focus group conducted by the project, students were asked to name one legal source for downloading media but could not. Noting that some respondents indicated that even iTunes was illegal, Elzy said, “There’s huge marketing potential for iTunes here.” And in turn, there may be huge potential for libraries to educate patrons about free ways to share and distribute media legally.

Posted on December 3, 2008. Discuss.

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