RIAA Lawsuits May Be Unconstitutional

Harvard law professor Charles Nesson is arguing, in court, that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional:

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called "theft" in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That's because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines.

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

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Posted on November 19, 2008 at 1:33 PM • 26 Comments

Comments

A nonny bunny • November 19, 2008 2:17 PM

Reminds me about a post I read on boingboing.net yesterday, about why copyright law should be revised.

Here's a small excerpt:
"What John does in the article is go through the average day of a professor (seems to be modeled on himself). He does a bunch of stuff on the internet, he goes to the gym, he works out with his tattoos on his shoulders, he plays loud music in his car, and he sings Happy Birthday to people in a restaurant, and by the time he’s finished with his average day, he counts 83 acts of plausible infringement, because some sort of copying was done. And he multiplies that by the maximum statutory damages – $150,000 per infringed work. So, just in one day, even without any kind of peer-to-peer file-sharing going on, John calculates 12.5 million dollars of potential liability for those ordinary infringing acts"

http://www.boingboing.net/2008/11/17/samuelson-and-lessig.html

John • November 19, 2008 2:18 PM

The penalties alone appear unconstitutional to me, let alone the means by which this is enforced.

If the copyright owner and the accused want to settle out of court that is between the two parties, but any legal penalties must have due process (which includes, if there is an investigation, a detective that can seek the truth fairly without any benefit from the outcome).

John • November 19, 2008 2:27 PM

Another comment, and this is just my humble opinion, is that how penalties so strict are often meant to deter, but can be used to blackmail.

This wasn't a copyright infringement case, but I know someone who was charged with a crime I won't mention. The case was pretty flimsy, and his lawyer estimated he had a 60-70% of winning. However, the opponents made this offer: plead guilty to a lesser charge and serve 18 months, or plead not guilty and we will pursue a 20 year sentence.

This gentleman had a 6 month old child, and decided a 30% chance of missing his entire upbringing was too great and he plead guilty.

Point is, with fines like $150,000 per incident, someone may be inclined to settle for several thousand dollars even if they are innocent. Most can absord a few thousand, but not a few hundred thousand. They may take a hit to avoid having their entire lives ruined. It could provide motive for blackmail since a few thousand without court would be worthwhile for the copyright owner.

Just a perspective. I'm no expert.

Mailman • November 19, 2008 2:46 PM

"copyright infringement (misleadingly called "theft" in the title of the bill)"

The day the RIAA has to stop calling it theft is the day they'll start to call it terrorism.

Gweihir • November 19, 2008 4:29 PM

Indeed. The Copyterrorists have the primary aim of destroying the US economy and deserve to be fought with all available means. The Digital Theft Deterrence and Copyright Damages Improvement Act was a first step in the right direction of stripping them of undeserved legal defenses. However more is needed, up to and including classifying them as "illegal terrorist merchants", which do not deserve any due process or human rights. I am all for extending the existing storage facilities (Gitmo, e.g.) and removing this scum from society permanently without the additional burden of having to invest money to actually prosecute them. They have done enough damage as it is.

Anonymous • November 19, 2008 5:01 PM

Copyterrorists, not "copyright terrorists".

Seriously though, the RIAA does not qualify as terrorists either. They are just organized crime that uses a bad loophole in the law.

poTAYto-poTAHto • November 19, 2008 10:21 PM

@Richard
"Now I'm confused. I thought the RIAA were the copyright terrorists."

One man's terrorist is another man's lobbyist :-)

Clive Robinson • November 19, 2008 10:38 PM

I note from the USAToday artical Bruce links to,

1, Cara Duckworth, a spokeswoman for the RIAA, said "...the industry's multibillion-dollar losses since peer-to-peer networks began...".

2, Entertainment attorney Jay Cooper, "...said the statutory damages it awards enable recording companies to get compensation in cases where it is difficult to prove actual damages."

3, The record companies have stated in court filings, that the awards they seek are, "intended not only to compensate the copyright owner, but also to punish the infringer (and) deter other potential infringers."

Now correct me if I'm wrong but their argument appears to be,

"As we can not show anything but a minimal direct loss, we will just pull some number out of the air that is bigger than the Gross Domestic Product for a significant number of nations, and use that as PR/spin for our compleatly unsupportable and ludicrously excessive demands."

I would be interested to know if any of the RIAA representatives had ever made the "multibillion-dollar losses" claim whilst under oath...

And if so where they ever chalenged to present any credible evidence to that effect.

I get the feeling that the Judges involved in the cases don't buy the RIAA "multibillion-dollar losses" argument at all,

4, District Judge Michael J. Davis, in a retrial ruling "called on Congress to change copyright laws to prevent excessive awards in similar cases." Further he stated that "he didn't discount the industry's claim that illegal downloading has hurt the recording business, but called the award "wholly disproportionate" to the industry's losses."

But do the RIAA et al realy care if Prof. Charles Nesson does get the "Digital Theft Deterrence and Copyright Damages Improvement Act of 1999" declared unconstitutional?

Collectivly they were successfull in lobbying for the legislation in the first place, so presumably they are also reasonably confident of getting further legislation should this act be struck down (ahh the joys of having politicians induced to listen to just your argument).

As once noted, "The price of freedom is eternal vigilance"...

Seth Breidbart • November 20, 2008 8:21 AM

The RIAA's members had their biggest year during Napster's heyday.

Then they claimed sales dropped, ignoring the fact that the number of releases dropped even more. People can't buy what doesn't exist.

That's the same industry that claimed that dubbing cassette decks would put them out of business, and earlier that radio playing their product would do the same.

o.s. • November 20, 2008 9:28 AM

'ahh the joys of having politicians induced to listen to just your argument).'
Clive I think its more realistic to say
"ahh the joys of having politicians "bribed" to listen to just your argument)."
Unfortunately, the RIAA and other lobbyists have used just such tactics to get their heavy handed legislation passed.

Nostromo • November 20, 2008 11:30 AM

What I would like to see, and see publicised, is the money trail. Who are the Senators and Representatives that the RIAA has bought? I'd donate to a campaign to publicise the facts in the districts of those politicians in the couple weeks before they next face the voters.

Davi Ottenheimer • November 20, 2008 11:36 AM

Excellent points in the critique of the industry and their thugs, the RIAA.

I was just reading about a situation with the mob that cornered the recycling and how they intimidated all the little shop owners into paying "license" fees to dispose of recyclables.

Can anyone distinguish the RIAA model from that of the underground economy...it really looks like organized crime to me too.

"Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body."

So "little idea of whether they can prevail" is the loophole -- beware a spot where the mob thinks they can muscle you with fear.

Davi Ottenheimer • November 20, 2008 11:51 AM

@ Nostromo

Perhaps you want to take a look at "Senator from Disney", Orrin Hatch of Utah.

http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.View&PressRelease_id=8032ff05-4551-4f08-a02c-cc3ce021c71e

Or here's a starter list -- some of those who have been found on the payroll of Disney and the MPAA:

Lobbyist Jack Valenti
Howard Coble (R-NC)
Trent Lott (R-MS)
Howard Berman (D-CA)
Barbara Boxer (D-CA)
Spencer Abraham (R-MI)
Al D'Amato (R-NY)
Mike DeWine (R-OH)
Connie Mack (R-FL)
Robert Torricelli (D-NJ)
Tom Daschle (D-SD)
Patrick Leahy (D-VT)
Sonny Bono (R-CA)
Charles Canady (R-FL)
Chris Cannon (R-UT)
John Conyers (D-MI)
William Delahunt (D-MA)
Elton Gallegly (R-CA)
Bob Goodlatte (R-VA)
Bill McCollum (R-FL)
Henry Hyde (R-IL)
Rick Boucher (D-VA)
Zoe Lofgren (D-CA)

Clive Robinson • November 20, 2008 12:21 PM

@ o.s.,

"Clive I think its more realistic to say,
"ahh the joys of having politicians "bribed" to listen to just your argument)."

Whilst I agree with the sentiment in the U.K. What you and I would call a "bribe" is not due to the definition used by the polititions...

So I used "induced" as a wider term to cover all the shady little deals such as back door directorships and spousess with their own lobbying agencies etc etc.

It was once remarked to me by someone I know that "the only time they had ever heard the truth pass Tony Blairs lips was at dinner, when the person sitting the other side of Tony lent forward and asked for the salt to be passed..."

I have the feeling similar can be said about a large number of politicians.

Hellfire • November 20, 2008 1:14 PM

I would be so satisfied if some ruling was made, maybe not in this particular case but somewhere that declared the RIAA's lawsuit practices illegal and retroactively forced them to return their winnings.

Piracy is a problem, but I have no respect for the RIAA. They are immoral, and pretty much plain evil.

© • November 20, 2008 3:08 PM

The Music and Arts Industry (as opposed to the artists) will soon be lobbying for a Federal bail-out :-)

Darn. I'm again creating a modification to an existing work and publishing it without first obtaining permission from the copyright holder(s) of the original.

alethiophile • November 20, 2008 11:21 PM

By writing this paragraph, I automatically hold copyright on it. By opening this page, you have copied it in several ways (browser cache, etc.). Since you are now guilty of unauthorized copying, please each of you send me $2000 or I'll sue you.

That's really more or less how it works.

Wim L • November 21, 2008 3:35 AM

alethiophile, there (used to be?) such a concept as an implied license. If you write a letter to a newspaper, you're implicitly agreeing to let them print it in their letters column, etc. I don't know how well this legal concept has fared in the modern world, though.

John David Galt • November 21, 2008 10:57 PM

I would love it if Nesson's theory prevailed in court, but I doubt it will. The fact that Eldred lost in the Supreme Court shows that its members are in Hollywood's pay, as far as I'm concerned.

askme233 • November 22, 2008 11:53 AM

"Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body."

Now imagine that they it is a private road that the speeders are not allowed to be on. The fines are in exchage for not pursuing criminal trespassing charges.
____________
OK,not exact, but does provide a little bit of counter to the reducio ad absurdium

peter • November 22, 2008 4:14 PM

There are obvious parallels between this bullying and SLAPP-suits.

The law-makers created anti-SLAPP suit rules to protect weak private individuals from SLAPP-suit bullying.

soulsabr • July 15, 2009 1:17 PM

Downloading a song or movie you did not pay for IS theft.

Allowing the download of the same is copyright infringment if you don't posses that right.

Penalizing somebody upwards of 150k per item is unconstitutional.

The RIAA is evil.

This horse has been beaten into a sticky goo and needs to be laid to rest. BOTH sides are wrong. It is that simple. Content is not free; somebody has to be paid for their time and effort. Blatant violations of the Constitution are wrong without exception. The correct answer is too complex for even a long discussion but will alway remain in the distance so long as everybody lines up on either side of a line.

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