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."
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 …
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Talkback
Points two and three are dubious
"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.
One question...
If not, then your opinions of points two and three are
worthless.
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
characters.
Of course, I'm not a lawyer
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.
So now I have to do your research for you?
Federal laws -
http://www.usdoj.gov/02organizations/
http://www.usdoj.gov/ag/
http://www.fbi.gov/libref/historic/history/text.htm
State laws -
Do your own googling! Nunce.
I simply suggested...
Otherwise, go play with the other trolls. Real experts are usually more than happy to reason with laypeople.
The text
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 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.
the US Constitution...should be all that requires examination.
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
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.
14th Amendment
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
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
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.
I made a mistake here
http://law.jrank.org/pages/1860/Prosecution-History-Public-Prosecutor-monopoly-power-prosecute.html
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.
There's a word for that...
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...
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.
On the contrary...
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...
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.
RE: Harvard's Charlie Neeson raises Constitutional questions in RIAA litigation
All Hail the Messiah!
If economic damages can be proven...
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.
What are you, a plant?
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
confused.