Nesson-RIAA Legal Standoff Continues

A legal battle pitting a Harvard Law School professor against a major music industry organization came to yet another standstill last week as the two sides disagreed over the parameters of a hearing originally scheduled to take place last week.

The case involves Boston University graduate student Joel Tenenbaum, who was sued in 2005 by the Recording Industry Association of America for deliberately downloading seven songs from a file-sharing Web site.

Last November, Law School Professor Charles R. Nesson ’60 became involved in the case when he filed a counterclaim on Tenenbaum’s behalf against the RIAA.

In the counterclaim, Nesson questioned the constitutionality of the RIAA’s application of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which penalizes copyright violators up to $150,000 per song willfully downloaded.

The RIAA then responded with a motion to reject Nesson’s counterclaim.

Nesson, who founded Harvard’s Berkman Center for Internet and Society, also requested that a proposed Jan. 22 hearing be broadcast publicly over the Internet.

According to the professor, broadcasting the case over the web would increase accessibility and make the court realize the internet’s power.

District Judge Nancy Gertner agreed to allow the hearing to be broadcast online, but the RIAA appealed Gertner’s decision, claiming that broadcasting the hearing could selectively favor Nesson’s arguments.

“We are always pleased to present our cases in open court,” said Liz Kennedy, a spokesperson for the RIAA. “But the exercise that the professor is engaged in is one of pure theatrics. We are not interested in furthering the promotion of the professor’s academic exercise in a court of law.”

In addition, Nesson made a motion to put Matthew J. Oppenheim, a former senior vice president for the RIAA, under oath for questioning.

According to Nesson, Oppenheim is the architect of the RIAA’s entire litigation campaign.

If Nesson’s request is granted, he said he would ask Oppenheim to detail the steps taken to decide why to go after Tenenbaum.

In response, Nesson said the RIAA is seeking to sanction him unless he withdraws this request.

He said he could receive a reprimand, a fine, or more severe consequences, depending on the judge’s decision.

“This is a personal attack, lawyer to lawyer. But they [the RIAA] don’t think a personal attack is a big deal,” he said.

Although the case has been moving forward, Nesson said he sees no definite end in sight. But he hopes “that it’s over by the end of the spring semester.”

—Staff Writer Helen X. Yang can be reached at hxyang@fas.harvard.edu.