You may recall the story of Joel Tenenbaum, the young man who chose to fight the RIAA when the group began to go after individual file sharers during the last decade. He has been caught in a legal hell for the latter half of the decade going from court to court and it looks like it will never end.
Enough is enough or says Tenenbaum’s lawyer, Charles Nesson, in a petition to the Supreme Court. The document obtained by Ars Technica shows a passionate argument against the RIAA and its tactics of threatening users unless they settle outside of court for a few thousand dollars.
The first part of the petition points out that the DOJ is in cahoots with the RIAA by pursuing the remittitur procedure against Tenenbaum to keep him in “endless litigation.” He calls it an “unnecessary and unwarranted extension of power” to the RIAA that only gives them more reason to attack people who have no knowledge or power to fight against copyright claims.
Remittitur is good thing though, right? It allows the judge to overturn the damages awarded by the jury because the amount awarded was too high. That’s where you’re wrong says Nesson as he points out that remittitur in this case only subjects Tenenbaum to more trials instead of being able to fight against the unconstitutionality of what the RIAA is doing. He says that the RIAA is using remittitur over and over agains until the defendant is forced to settle.
All of this is a ploy by the RIAA and the DOJ to force people into settling without ever reaching the constitutional question. As proven time and time again, groups like the RIAA don’t want to take these things to court. Instead of being forced to answer questions about the constitutionality of their absurd claims that a single song costs them thousands in damages, they want to force defendants to settle in the lower courts.
The RIAA has stopped targeting individuals though, so maybe Tenenbaum should just settle. Nothing like this will happen again, right? Wrong says Nesson as he points out that other groups, especially porn studios, have taken up the RIAA’s old tactics. It would be in the nation’s best interest if the Supreme Court were to offer an opinion so that all current litigation can be laid to rest.
Nesson also points out that every copyright case that the RIAA uses to defend their right to sue citizens for absurd amounts of damages comes from the old 1909 copyright law. The updated law from 1976 makes it so that plaintiffs are only awarded what they truly lost instead of the ridiculous statutory damages.
The true crux of Nesson’s argument is in the third section though. Here is where he lays down the true motive behind the RIAA’s assault on individuals:
RIAA’s litigation assault on individual file-sharers, Tenenbaum and Thomas-Rasset among them, is procedurally unfair and profoundly unethical. It pits an industry against an individual and punishes the individual for what others have done and will do. It seeks to punish him beyond any rational measure of the damage he conceivably caused, not for the purpose of recovering compensation for actual damage caused by him, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using the internet, and so frightening to parents and teachers of students using the internet, that they will somehow reverse the tide of the digital future. The individual is to be grievously punished as an act of public education.
He also makes the excellent point that one man’s actions can not be made tantamount to the actions of million of file sharers around the world. It’s almost like the RIAA is punishing Tenenbaum for the millions of shared files going around the world at this very minute when in fact he only downloaded 23 songs.
Plaintiffs attempt to substitute the action of one individual for the actions of millions. They seek to leverage the damage attributable to all file sharing tojustify heinous punishments for one. Tenenbaum, acting as one individual, did not (and could not) cause the injuries the RIAA describes. Nor is he answerable for the amount of damages that they seek to collect from him. File sharing as a whole caused the injuries about which the RIAA complains. Had Tenenbaum never shared, the songs would have been shared and available nonetheless. Tenenbaum did not create filesharing and he was not in any way critical to its spread or its effects. It cannot be that he, individually, caused the destruction of the complete value of each of plaintiffs’ copyrighted works. It was not Tenenbaum alone who reduced income and profits for the recording industry; it was not Tenenbaum who cost employees their jobs — it was the global millions engaged in filesharing that did all this
It’s a valid question that the Supreme Court needs to address. Of course, the RIAA has already found their solution – trying to block access to, or shutting down, sites that they see as a threat to their monopoly over creative works. It’s already proven that it doesn’t work so it’s only a matter of time before the RIAA starts going after dead people and grandmothers with settlement letters.