Harvard Law Professor Challenges Digital Theft Deterrence and Copyright The Damages Improvement Act
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Charles Nesson, the law professor from Harvard, has decided to come to the defense of a Boston University graduate student sued by RIAA (Recording Industry Association of America) for downloading seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004.
The Digital Theft Deterrence Act sets damages of $750 to $30,000 for each infringement, up to $150,000 for a willful violation.
Nesson believes 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 — carry out civil enforcement of a criminal law. He thinks RIAA 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.
Nesson intervened after a federal judge in Boston asked his office to represent Joel Tenenbaum, who was among dozens of people who appeared in court in RIAA cases without legal help.
Tenenbaum offered to settle the case for $500 which the music companies rejected, demanding instead $12,000. The record companies contend that the damages allowed by the law are intended not only to compensate the copyright owner, but also to punish the infringer and deter other potential infringers.
RIAA argument is that suing people suspected of music piracy is a fair response to the industry’s multibillion-dollar losses since peer-to-peer networks began making it easy for people to share massive numbers of songs online.
In September, a federal judge granted a new trial to a Minnesota woman who had been ordered to pay $220,000 for pirating 24 songs. The U.S. District Judge Michael J. Davis called on Congress to change copyright laws to prevent excessive awards in similar cases. He wrote 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.
RIAA counter argument is that the statutory damages it awards enable recording companies to get compensation in cases where it is difficult to prove actual damages.
Nesson believes the industry could develop new ways to prevent copyright material from being shared illegally.
It looks like a battle between Goliath and David.
On hindsight it looks like music sharing has helped to popularize music and its commercial downloading than it would have been possible through traditional venues. Music companies unfortunately have been slow to embrace and to exploit the new concept. Only Apple iTunes and a few other companies make a fortune of it regardless of peer-to-peer download. They simply make it user-friendly and charge a minimal price per download, which actually is quite high compared to a CD cost with several songs. Downloading per tune become addictive. Apple iTunes make millions while music companies are losing and suing people.
Music companies want the whole cake and bigger ones if possible.
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