Harvard's Charlie Nesson raises Constitutional questions in RIAA litigation

Harvard's Charlie Nesson raises Constitutional questions in RIAA litigation

Summary: In a major development in RIAA litigation, Prof. Charles Neeson of Harvard Law School is charging that the RIAA's tactics are an abuse of federal process and that the law on which the litgation rests -- the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 -- is unconstitutional.

In a major development in RIAA litigation, Prof. Charles Nesson of Harvard Law School is charging that the RIAA's tactics are an abuse of federal process and that the law on which the litgation rests -- the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 -- is unconstitutional. Nesson, with the help of Harvard Law 3Ls Shubham Mukherjee and Nnamdi Okike (which should tell you that our future leaders may have more "un-American" names than Barack Obama), made the arguments in defending Joel Tenenbaum's counterclaim against the record companies. Tenenbaum, who was a teenager at the time he downloaded seven songs over a P2P network, is also seeking to join the RIAA in his suit. In the opposition to plantiff's motion to dismiss counterclaim (PDF), Nesson charges that the federal law is essentially a criminal statute in that it seeks to punish violators with minimum statutory penalties far in excess of actual damages. The market value of a song is 99 cents on iTunes; of seven songs, $6.93. Yet the statutory damages are a minimum of $750 per song, escalating to as much as $150,000 per song for infringement "committed willfully." (Title 17, s. 504(c))

Harvard has a website with filings and other information in RIAA v. Tenenbaum. If the law is in fact criminal in nature:

  • Defendants are entitled to the due process accorded criminal defendants, including criminal procedure and right to a jury trial.
  • Congress has violated the Constitution by puttng the prosecution of a criminal statute in the hands of private parties.
  • Congress has violated separation of powers by requiring the courts to try cases according to inappropriate civil processes.
  • Congress has violated the 5th and 8th Amendments by requiring "grossly excessive statutory damage awards."
The law, Nesson writes, is "wholly analagous" to a law that provides the following regime for speeders: (1) a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding; (2) the fines are not publicized and few drivers know they exist; (3) enforcement not by the government but by a private police force that keeps the fines for itself and:
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.
The judge in the consolidated case may be amenable to the argument that the RIAA is abusing process, but it may take appeals to the Circuit Court, or even the Supreme Court, to gain traction on the Constitutional question. Regarding process, Judge Nancy Gertner said:
Counsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers… to understand that the formalities of this are basically bankrupting people, and it’s terribly critical that you stop it …

Topics: Enterprise Software, Banking, Government, Government US, Legal

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  • Points two and three are dubious

    Mind you, I tend to take the US Constitution a lot more literally than the US Supreme Court has during my lifetime, but...

    "Congress has violated the Constitution by putting the prosecution of a criminal statute in the hands of private parties."

    Where does the US Constitution prohibit that? I actually think it's appropriate to allow alleged victims (or their guardians or heirs) to initiate criminal prosecutions because otherwise, public prosecutors are put in the position of deciding which laws will be enforced (legal mandates and oaths notwithstanding).

    "Congress has violated separation of powers by requiring the courts to try cases according to inappropriate civil processes."

    Is it not the job of Congress to make the law? The prescribed procedures might violate constitutionally mandated due process, but they don't violate separation of powers.

    I think the other two points are valid. Four times the market price of the recordings plus legal fees is sufficient deterrent. The existing mandate is overkill in the extreme.
    John L. Ries
    • One question...

      Are you a Constitutional Law lawyer?

      If not, then your opinions of points two and three are

      The Constitution does not grant the authority for any citizen to
      enforce the law, sir. If that were true citizens arrest would be
      legal everywhere in the U.S. and it is most certainly not, nor is
      it unconstitutional (today) for a state to prohibit such behavior.
      In the Commonwealth of Virginia, for instance, only duly
      deputized officers of the law (sworn oath required) are allowed
      to enforce the law. Citizens who try can be brought up on
      "Unlawful Detain" charges which are a misdemeanor form of
      kidnapping. So, no, individuals do not have the right or privilege to prosecute the law, much less enforce it. Criminal
      statutes are prosecuted by the state. Period. That's what the
      state DA's offices do along with the federal Justice Department.

      I'm not even going to comment beyond that. Pointless to waste
      • Of course, I'm not a lawyer

        But I'll tell the truth, as I see it, which is the right of every citizen. How much my opinions are worth is dependent on how true they are, which everyone can decide for himself, not on my professional credentials. The day has long since past (if it ever existed) that judges could be trusted to put good faith interpretation of the laws above public policy considerations, so it behooves the citizenry to pay attention and decide for themselves whether or not the laws are being interpreted accurately.

        The US Constitution says *nothing* about who is and is not allowed to conduct criminal prosecutions (if I'm wrong, show me the appropriate passage to the contrary), which makes it properly the province of statute law. Nor would the ability of private citizens to conduct criminal prosecutions necessarily imply the authority to make arrests. I can envision the law allowing the alleged victim of a crime (or his lawyer) to present evidence to a magistrate or grand jury which would then decide whether it is sufficient to warrant prosecution. If it is, the court would issue an arrest warrant and a duly authorized police officer would then make the arrest. It might also be the case that the court would order the public prosecutor to prosecute the case, rather than the accuser. If convicted, any fines would be paid to the court, and any incarceration would be in the usual public facilities.

        In any case, it's absolutely ridiculous that prosecutors have the de facto power to decide which laws will be enforced and which will not.
        John L. Ries
        • So now I have to do your research for you?

          Ok, try these:

          Federal laws -




          State laws -

          Do your own googling! Nunce.
          • I simply suggested...

            ...that you tell me where I'm wrong. Since the professor was raising constitutional issues, the US Constitution (which is nice and short, and remarkably easy to read for a legal document) should be all that requires examination. Or if the text is ambiguous, you could point out the appropriate US Supreme Court decision, which we could look at together.

            Otherwise, go play with the other trolls. Real experts are usually more than happy to reason with laypeople.
            John L. Ries
          • The text

            has been interpreted for 200 years. One cannot simply
            refer to the text. One must know how the Court has
            interpreted over the years and what the current state
            of the Court's understanding is. So let us speak of
            court decisions, not merely the text.

            I have linked to the brief. The cases he relies on are
            duly cited there if you choose to read them.
          • Interesting brief

            I still think that point 2 is the weakest part of his case and it would be IMHO a very bad precedent if he prevailed on it, though it looks like I'll have to look up the case he cites. I'll agree with him on point 3 in that if this is really a criminal case in civil guise, then the defendant is indeed entitled to the usual protections afforded to criminal defendants (but it's not a violation of separation of powers).

            I note that he says the most about point 4, which is the strongest part of his case and is the one on which he should prevail. He should also prevail on point 1.

            But I'm sure we'll see what the judge has to say in due course.
            John L. Ries
          • the US Constitution...should be all that requires examination.

            No. What you propose is that any chucklehead should be able to interpret the Constitution however he wants, and instantly create his own personal laws out of whole cloth. The Founders knew that would be insane stupidity, so they deliberately created a system to deal with it.

            Congress can pass laws, but those laws must fall in line with the Constitution. Since the Constitution doesn't mention the Internet, does that mean any law about the Internet is A-OK? Of course not. That's why the Constitution must be INTERPRETED and, in rare cases, AMENDED.

            You are not entitled to have laws based on your own personal customized interpretation of the Constitution. We have a judiciary for that purpose.

            How many First Amendment proponents are anti-gun? How many Second Amendment proponents want to impose their gun rights on private business owners? How many private business owners want to stifle free speech that goes against their interests? Each and every one of these is a hypocrite.

            It's a package deal. You don't get to pick the items you like from the menu and throw the rest away.
          • The courts can interpret the laws however they think proper

            But it's up to individual citizens to decide whether they did it right and opinions can and should be expressed accordingly (if we're wrong, then those who know more can very patiently explain why, as do experts in other fields). The problem with the notion that the law (to include the constitution) is this impossibly complex set of precedents and principles that non-lawyers can never hope to understand and should never comment upon is that it means that only lawyers can possibly know what the law is (in which case, how can ordinary people obey it without consulting a lawyer before doing anything?) and that the written law isn't worth the paper it's written on. In the case of constitutional law, it means that the Constitution of 1787 is not and never was the law of the land; merely a framework on which jurists could base the actual constitution, which is found solely in case law and can be changed at will.

            Certainly it would be impossible for citizens to determine whether or not public officials are doing their jobs right if is impossible for them to understand the constitution under which they function. If that's true, we might as well do away with the charade of democracy and hand everything back to kings and lords, properly advised by good lawyers, of course.

            On the whole, I like the literal approach much better. Doesn't mean I can afford to ignore existing judicial precedent (I still have to follow the law as it has been interpreted by the courts, even if I don't like it, and yes, I did exaggerate above... so far), but it also doesn't mean I have to accept the precedents that have been set as accurate (or even truthful) interpretations of the written law.
            John L. Ries
        • 14th Amendment

          John -- the short answer is the 14th Amendment's due
          process clause. There is a very well accepted stable
          of criminal procedure rights that adhere to criminal
          prosecution. Our system is that there is a criminal
          system and a civil system. The civil system is to
          right private wrongs. The criminal aystem is a public
          system, for society - via its government - to
          prosecute, fine and/or imprison violators.

          That said, there are citizen arrests and citizens may
          conduct prosecutions in certain circumstances. But
          criminal procedure may not be swept aside under the
          guise of civil action. If the action is criminal, then
          criminal procedure applies.

          That chiefly means in this context: the right to
          counsel, the right to have a jury trial, the right to
          have the jury decide on the penalty. The law in
          question does not provide counsel, does not require
          jury trial, takes the penalty decision away from the
          finder of fact.
        • Executive duty

          John, the constitutional duty of the executive is to
          enforce the laws. That means they have discretion on
          how to do their job. For Congress to dictate how they
          do their job seems an obvious violation of separation
          of powers to me.

          For that matter, I think minimum sentencing guidelines
          are, as well.
          • I'll agree on minimum sentencing guidelines

            But I'll audaciously claim that the duty of the President and his subordinates to "take care that the laws are faithfully executed" is a mandate to enforce all the laws, not a license to decide which laws will and will not be enforced. In any event, it's always been the business of courts to decide innocence or guilt and to punish those found guilty, no matter who the accusers are. It is even true that Congress and state legislatures have in the past authorized courts to appoint public prosecutors, rather than presidents or governors (you might recall that the former independent counsel law was upheld by the US Supreme Court after it was challenged on the grounds that court-appointed special prosecutors were not officers of the executive branch). Of course, the vast majority of state prosecutors have long been elected by popular vote. The traditional state monopoly on criminal prosecutions is founded on statute and common law, not the US Constitution, though judges are free to disagree with me, just as umpires do with baseball players. The problem with the status quo is that prosecutors can and do decide to not prosecute certain sorts of offenses, making the laws that prohibit them dead letters.

            My position is based on a conversation I had with a police officer back when I was a convenience store clerk who told me that the police report I had just filed against a beer runner would go nowhere because the DA's office had a policy against prosecuting them, unless they were arrested on the spot. I think in that case, my employer should have had the option of hiring a PI to identify the perpetrator and then to hire a lawyer to file criminal charges and prosecute the case (or to have the court order the DA's office to do so). As it stood, the policy had the effect of partially legalizing shoplifting.
            John L. Ries
          • I made a mistake here

            I came across an article this morning that claims that private prosecutions are and always have been permitted in England.


            If it's correct, the state monopoly on prosecutions has nothing to do with Common Law and is actually a Civil Law practice. Would be interesting to see what the rules were in colonial times; probably exactly the same as in England, which would make it hard to argue that private prosecutions are unconstitutional, unless you believe in a "living constitution" that has little to do with either the actual text or the intent of the framers. Even if you do, I think you'd have to make a serious argument that private prosecutions are inherently unjust and I haven't seen one.
            John L. Ries
    • There's a word for that...

      [b]"Congress has violated the Constitution by putting the prosecution of a criminal statute in the hands of private parties."

      Where does the US Constitution prohibit that? I actually think it's appropriate to allow alleged victims (or their guardians or heirs) to initiate criminal prosecutions because otherwise, public prosecutors are put in the position of deciding which laws will be enforced (legal mandates and oaths notwithstanding). [/b]

      It's VIGILANTISM. And it's heavily frowned upon in most other circumstances.
      • There's a difference...

        ...between private citizens apprehending and punishing criminal suspects on their own (I am absolutely not in favor of lynch law), and their going to court to file criminal charges against them instead, particularly when police and prosecutors decide to violate their oaths of office and look the other way.

        In the latter case, it would be up to the judge or a grand jury to decide whether or not the evidence warrants prosecution, just as they do when public prosecutors file charges. Mind you, I also think that a private accuser should have to show standing in the same way that civil plaintiffs do.
        John L. Ries
        • On the contrary...

          The RIAA/MPAA (herein after referred to as "The Mob") have been known to "bait" P2P networks to gather information on who downloads files from these services. The Mob then strong arms ISPs to give them information as to who was on a given IP address, and then files a suit against the party in question, threatening to sue the party into oblivion regardless of having any concrete proof.

          How many times have we heard of 90 yr old women being sued when they don't even own a computer or other similar situations? Sometimes the information in question isn't the most accurate. And in that case, innocent people can get screwed royally.

          Then there's the extortion factor. Regardless of any proof of guilt, the Mob then makes the victim of their law suit an offer most can't refuse - the settlment... You pay them $5000 or $10,000 and they'll make it all go away.

          Why does this work? Because most people can't afford to hire a lawyer to defend themselves and $5000 is infinitly cheaper than the amount the court could demand they pay if they lose, plus court costs, plus lawyer's fees, etc...

          It's a lovely racket. And it's perfectly legal at the moment.
          • I agree that it's wrong...

            ...and unconstitutional.

            But not because it amounts to private prosecution, but because the punishments prescribed are vastly disproportionate to the offense (makes extortion real easy), and possibly (as Richard points out) because it violates due process. Remember that public prosecutors can and do abuse the law in much the same way (we even read about it every once in a while in the news). The fact that someone was elected or was appointed by someone who was is not a sufficient guarantee against prosecutorial misconduct; indeed I doubt it makes much difference at all. Even if it did, I don't think it would make private prosecutions categorically unconstitutional.
            John L. Ries
  • RE: Harvard's Charlie Neeson raises Constitutional questions in RIAA litigation

    If you damage a rental car, the rental car agency can have you pay for the loss of rental during the repair period. Similarly, courts can assign "pain and suffering" damages, which are much higher than the actual loss incurred. If you steal a song and it gets loose on the Internet, you have caused the record company to loose most of their expected revenue. I think the death panalty would be appropriate, since most people would be unable to make even a token recompense for such an act.

    All Hail the Messiah!
    • If economic damages can be proven...

      ...to be 100+ times the market value of the misappropriated materials, then it makes sense to assess damages that high, but it doesn't make sense for Congress to mandate them without proof of actual damages. Barring such proof, I think the biblical fourfold is sufficient (maybe tenfold; higher than that is absurd).

      Capital punishment for copyright infringement is, of course, laughable, unless, of course, you want to execute people for reckless driving as well (people can get killed, and even worse, property damage might end up being higher than what the offender's insurance will cover).

      I also submit that corporations can't be traumatized, which makes "pain and suffering" equally laughable.
      John L. Ries
      • What are you, a plant?

        You have to be either a record company representative or a
        complete stooge. You are talking about *CIVIL* penalties, i.e.,
        damages. Criminal cases do *NOT* include punitive damages and
        *ALL* costs associated with theft are based off of market value.
        With your logic someone stealing an item from a department store
        would be liable for damages to the manufacturer for *ALL* costs
        associated with producing said item. That, sir, is plain ludicrous
        and is *NOT* what criminal laws are based on. You are sadly