The battle between the music industry and people who share songs online has received much attention in recent years. While many believed the controversy subsided with the reformatting of Napster and the enactment of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, a new front has emerged. Leading the charge is a Harvard Law School professor challenging the constitutionality of the Act.

The Digital Theft Deterrence Act allows the Recording Industry Association of America (RIAA) to pursue civil suits against users who are illegally sharing songs online. The penalties can range from $750 to $30,000 per infringement. Professor Charles Nesson has entered the argument on the side of Joel Tenenbaum, a Boston University graduate student who is accused of downloading at least seven songs and making 816 files available for distribution through the Kazaa music network. Although Tenenbaum offered to settle his case for $500, the RIAA refused and is seeking $12,000 in damages.

Nesson is challenging the suit on the grounds that the Digital Theft Deterrence Act is unconstitutional because it allows a private group to carry out civil enforcement of a criminal law. He also accuses the RIAA of abusing the legal system with intimidating letters in an effort to coerce people to settle out of court. Of the 30,000 complaints filed under the Digital Theft Deterrence Act, only one has actually gone to trial.

Nesson is not the only party standing up to the industry’s tactics. Duke University recently announced that it would require the industry “to provide evidence of copyright infringement before forwarding pre-litigation notices to students.” University officials now want proof that another party actually downloaded from the charged student before contacting the student on behalf of the RIAA.

Others in the judiciary are also voicing concerns regarding these suits. The Hon. S. James Otero recently stated, “[t]he concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants.” Other judges are also concerned about what they see as excessive penalties being imposed upon users. U.S. District Judge Michael J. Davis found a $222,000 award against a Minnesota woman for pirating twenty-four songs “wholly disproportionate” to the industry’s losses. Industry officials disagree, claiming that digital piracy costs the music business over $12.5 billion worldwide, annually.

While the ultimate winner of this David vs. Goliath battle remains to be seen, one thing is certain: the fight over peer-to-peer networking is far from over.

Brooke Russ

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