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Billion Dollar Charlie takes on the RIAA

Date: April 5, 2009 @ 3:07 AM

Ars sits down with \"Billion Dollar Charlie\" Nesson, the Harvard Law professor who\'s taking on the RIAA in federal court. Winning his case would be great, but Nesson\'s thinking even bigger. He wants nothing less than a national, Internet-enabled conversation about copyright and damages in the digital age.
By Nate Anderson | Last updated March 31, 2009 7:10 PM CT

http://arstechnica.com/tech-policy/news/2009/03/billion-dollar-charlie-vs-the-riaa.ars

Charlie Nesson isn\'t one for small gestures—the Harvard law professor is known as \"Billion Dollar Charlie,\" after all, and he was one of the lead lawyers in the famous industrial dumping case that became the book (and then the movie) A Civil Action. So when he took on the defense of a 25-year old Boston University physics grad student who was accused of sharing copyrighted music online, the case suddenly promised to be more than usually interesting. It has not disappointed so far.

But it has also seemed like a bit of a circus, what with attempts to depose lawyers from the other side, the filing of official apologies, motions on webcasting the trial, threats of judicial sanctions, and Nesson\'s desire to record everything—including typically-private lawyer-to-lawyer conference calls. Things grew strange enough that even noted RIAA scourge Ray Beckerman wrote, \"To you law students and young lawyers out there; please don\'t think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides\' lawyers than I would imagine possible.\"

How the hell am I going to do this? I\'m not a trial lawyer.

Is there a method to the madness? We put the question to Professor Nesson, who explained what he hoped to accomplish. In his view, the case is nothing less than a way to have a public discussion on copyright of the sort that we haven\'t had in the US since the major reworking of the Copyright Act in 1976. And if the US government gets involved, even on the opposing side (as it has), that\'s a positive development.
\"Litigating in cyberspace\"

Nancy Gertner, the federal judge handling the case, helped to connect the lawyer-less Joel Tenenbaum with Professor Nesson, who took the case after Gertner asked him to get involved. Nesson\'s first thought, he tells Ars, was \"How the hell am I going to do this? I\'m not a trial lawyer.\"

But as he thought about it, it became clear that such a case could work well as part of his teaching and research. Not only would it provide some Harvard Law students with vital real-world federal lawyering on an issue they cared about, but it would also fit it Nesson\'s ongoing research agenda on making the \'Net into an educational medium. (Nesson was one of the cofounders of Harvard\'s Berkman Center for Internet & Society ten years ago, and has a long-standing interest in technology. He even maintains a Twitter account.)

Those twin goals drove his decision to press for a full gavel-to-gavel webcast of the trial, something currently tied up in appeals. It also explains why he wants to record everything from Joel\'s deposition to the lawyers\' \"meet-and-confers\" to phone calls with the judge—who asked him not to do so. (She\'s capable of \"knocking me for a loop,\" Nesson said.) E-mail traffic is all archived, the meetings with students are recorded, and court documents are being saved and put up on the web.

\"We\'re litigating in cyberspace,\" Nesson said. \"It\'s like a reality show that we can all be participants in as we go along... It\'s an incredibly powerful expansion of the idea of teaching.\"
A national copyright conversation

That\'s great for the students, but what about Joel Tenenbaum, who runs the risk of fines that could range as high as a million dollars? Nesson certainly intends to make the recording industry prove that Joel did what he is claimed to have done, but the focus of the defense will be on bigger questions. Are massive statutory damages of up to $150,000 per song truly constitutional penalties, or do they fail a test of proportionality to the crime? Is the RIAA\'s legal campaign, though proceeding as a set of civil suits, really more like a series of criminal cases, which only the government can bring? Is Joel\'s noncommercial file-sharing simply a type of \"fair use\"?

These are the questions that Nesson and his students have raised, but they have also been answered by the US government, which filed a brief last week disagreeing with nearly all of Nesson\'s arguments.

That doesn\'t bother him, though, because Nesson is of the strong opinion that the US needs a public debate on copyright, a debate that won\'t truly happen unless the government is involved. \"I believe that is a help to us to have the issue of this campaign, which the RIAA has undertaken, made the focus of attention in an argument that has the solicitor general stepping up and representing the position of the United States government,\" Nesson said.

With the tremendous publicity that the case has received and the fact that academics, rightsholders, and the government are now all invested in the outcome, the Tenenbaum trial could be one way of having that conversation.

\"This is an argument that should take place on the \'Net,\" Nesson said, because the framers of the 1976 copyright overhaul could not even envision the new world brought into being by the Internet. The old tradeoffs and punitive remedies need rethinking, in his view, and abominations like 1998\'s Copyright Term Extension Act (dubbed the \"Mickey m ouse Term Extension Act\" by critics, since it made sure that Mickey didn\'t fall into the public domain) hardly count as a \"public conversation.\"

The government brief defending current law came from the office of the Solicitor General, which represents the government in such cases. Nesson was disappointed that the government\'s position \"differs not a whit\" from the Bush administration\'s, though he holds out the hope that some change may come. The Department of Justice is charged with defending, not creating or altering, US laws, so the filing was not unexpected.

Still, with Nesson\'s boss Elena Kagan (former dean of Harvard Law) recently confirmed as the new Solicitor General, copyright could conceivably be defended in a different way. Nesson has argued, for example, that statutory damages of the kind sought in the Tenenbaum cause were never envisioned for use against noncommercial file-swappers and kids in dorm rooms. The Department of Justice will defend \"the furthest reach of reasonably defensible power of the Congress,\" as he puts it, but he hoped that applying such damages to people like Joel Tenenbaum might be seen as unreasonable.

Now that Kagan has been confirmed, some change in government interpretation is possible, but by no means guaranteed. And the government brief in the Tenenbaum case was a robust endorsement of the status quo.
Graduated response is the \"ultimate closing of the \'Net\"

Nesson\'s involvement in the Tenenbaum case comes at the end of the RIAA\'s mass litigation strategy. Instead, rightsholders are increasingly bringing pressure on ISPs to implement \"graduated response\" programs that can cut down on repeat copyright infringers without the delay, cost, and bad PR of thousands and thousands of trials.

Despite the obvious advantages to both rightsholders (potentially far more effective) and to infringers (no letters demanding $4,000 settlements), Nesson doesn\'t see graduated response as a positive step. \"To me it\'s the ultimate closing of the \'Net,\" he said. Such proposals divide the world into two groups—users of commercial ISPs, where people can change ISPs if they want, and users of university ISPs. Commercial users face a reality where \"bang, you\'re booted\" off the Internet, while universities will be squeezed for lump-sum payments to cover student swapping. (Choruss appears to be an example of this latter approach, though details are still being worked out.)

The situation is a bit too controlled by one set of users (in this case, media copyright holders), and Nesson sees parallels to the world of control being built by Google through things like Google Book Search.

This isn\'t surprising coming from a man who in 2007 publicly told the RIAA to \"take a hike,\" but can Nesson & Co. really win a case based on constitutional challenges to copyright law and damage awards? We\'ll know this summer when the case goes to trial, but it\'s already clear that Nesson will have to stand up to both the recording industry and the government. And should the case show signs of truly becoming a key copyright battle, expect every major voice on all sides of the copyright question to weigh in as well. If he wanted a conversation about copyright and statutory damages, Nesson looks well on his way to getting it; having it come out his way might be another matter.

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