Law professor Charlie Nesson (aka Billion Dollar Charlie) is planning on bringing the U.S. Constitution into his defense of Joel Tenenbaum, a former college student being sued by Sony BMG for download seven songs on Kazaa in 2004 when he was 17 years old.
In what is sure to be a landmark case in digital copyright law, Nesson argues that the current punishment for file sharing is an abuse of process. File-sharing cases are handled in civil court, but the damages are often set to outrageous levels without proof of concrete damage caused by the file sharer.
Nesson points out that, “because actual damages are zero, the statutory damages should also be zero.” Tenenbaum offered to settle the case for $500, but the RIAA declined, sighting $12,000 in damages. The Digital Theft Deterrence Act sets damages as high as $30,000 for each infringement, or as much as $150,000 for a willful infringement.
Nesson claims that file sharing can be considered fair use. In a recent court brief, Nesson states that, “the issue of the fairness of the defendant’s use is integral to the decision the jury must make as to whether the defendant’s actions were infringements.” So it’s up to a judge to decide whether the defendant infringed on copyright, not the RIAA.
In this video, Nesson puts the punishment in perspective saying we prosecute people who shoplift a CD differently than someone who illegally downloads or shares a CD or in some cases just individual songs. These songs cost 99 cents on iTunes, so why should the damages paired with the crime be in excess of a thousand dollars a song? Especially since these are private citizens, and not commercial entities charged with file sharing; They’re at an extreme financial and legal disadvantage up against a commercial entity like the RIAA.
Nesson also takes a brave step in throwing part of the blame back at the record companies and the United States’ antiquated copyright laws. The four factors governing copyright law were first established back in 1976: the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to it as a whole and the affect of the use on the potential market. Put into law long before the Internet, and before P2P sharing was even remotely possible.
Law doesn’t usually grasp my interest, but as a child of the Napster generation it hits a little closer to home. Future posts to come as the case develops, but these things take time as we all know. Follow this case on your own via their Facebook page here or on the Joel Fights Back Web site here.