Charles R. Nesson ’60, the founder of Harvard’s Berkman Center for Internet and Society, is defending Joel Tenenbaum, a Boston University graduate student charged in 2005 with downloading seven songs from a file-sharing network. According to RIAA spokesperson Cara Duckworth, the amount sought from Tenenbaum is undisclosed and left to the judge’s discretion, though Tenebaum may face over $1 million in penalties.
Nesson argues the RIAA’s prosecution of Tenenbaum oversteps legal boundaries.
“This is an unconstitutional delegation by Congress of executive prosecutorial powers to private hands,” Nesson wrote in his brief.
“That a private organization is allowed to take a huge chunk of government power and impose its will upon millions of people is, frankly, disconcerting,” he said in an interview.
The statute in question—The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999—penalizes copyright violators up to $150,000 per willful infringement.
“The situation is absurd,” Tenenbaum said. “It was never about the money. It was about creating a scary situation to deter others.”
Often, the accused in copyright infringement cases do not understand the charges against them and cannot afford an attorney, so they pay the amount the RIAA demands without ever reaching court, Nesson said.
“My biggest concern is that [the RIAA] take advantage of a statute written years ago in a way that Congress probably didn’t intend,” said Shubham Mukherjee, a third-year law student assisting Nesson with the case.
The goal of the counterclaim, Nesson said, is to balance the case so both sides can express their views.
“Right now, most people have this mindset that illegal downloading is plain wrong, but we need to look at the actions of the other side, too,” he said.
Although the RIAA does not comment on specific cases, Duckworth said the organization makes “every effort possible to be fair and reasonable.”
“Generally, the music community has had to endure thousands of layoffs and billions of dollars in losses in just a few short years, primarily due to the exact kind of activity in which we found the defendant actively engaging,” she said. The RIAA said that it will file a motion to dismiss Nesson’s counterclaim.
Nesson believes in protecting artists’ properties but believes that there must be a better way to do so.
“The current copyright system is outdated,” Nesson said “The RIAA’s efforts are a legal antique in our digital world.”