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Billion Dollar Charlie takes on the RIAA
TameasDust
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/bi
llion-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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