A ray of hope against RIAA extortion

Defendants targeted by the record industry for file-sharing now have an advocate who's challenging their right to sue for millions:

A Harvard Law School professor has launched a constitutional assault against a federal copyright law at the heart of the industry's aggressive strategy, which has wrung payments from thousands of song-swappers since 2003.

The professor, Charles Nesson, has come to the defense of a Boston University graduate student targeted in one of the music industry's lawsuits. By taking on the case, Nesson hopes to challenge the basis for the suit, and all others like it.

Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group—the Recording Industry Association of America, or RIAA—carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.

Whether he has a legal leg to stand on seems dubious to me, but I'm not a lawyer and he's a pretty well-regarded one, having exonerated the Pentagon Papers leaker Daniel Ellsberg, and several law journals have published articles supporting his position.

But the most important aspect of this is that hardly any of the cases actually go to trial, because the penalties instituted by Congress are so ridiculously high that defendants almost always settle out of court. It's basically a legal extortion racket. The defendant in this case, Joel Tenebaum, allegedly shared 800 music files via Kazaa. Sure, they were copyrighted and sure, if guilty he should have some consequences. But he's possibly on the hook for $1 million, far beyond the possible damages suffered by the copyright owners. As a result, he might not have the chance to defend himself in court.

Thousands of defendants have settled for a couple thousand dollars each because the risk of defending themselves, these possible million-dollar judgments, is too scary. Only one case has gone to trial before this, out of some 30,000 accused by the RIAA. The industry claims to be going after pirates, but this kind of extortion is itself piratical behavior, and needs to be stopped.