Harvard’s Legion of Legal Super-Heroes. They can lock arms and emit a powerful beam of Legal Logic that can defeat any foe. Yeah, okay, I’m glad I’m not in law; these look like the sorts of people who would beat me.

What happens when people targeted by record industry legal intimidation fight back? What if they not only defend themselves, but go on the offensive, counterclaiming the industry is abusing the law and legal process? What if courts decide the industry really can’t hijack an unrelated PC belonging to someone’s Mom and Dad? That’s what’s at stake in a case in Rhode Island.

Now, the exciting conclusion to the face-off between record industry lawyers and a class full of Harvard Law students and their professor. Well – sort of. This is legal drama we’re talking, so it may be neither exciting nor conclusive.

Our Story So Far

File streams on Kazaa, (CC) sumoto.iki. What’s really at stake in this case, though, isn’t whether online piracy can stand. It’s whether the record industry get away with intimidation and invasion of privacy.

The case was this: as part of ongoing threats of litigation, Rhode Island residents Arthur and Judie Tenenbaum faced legal pressure from the US record industry group, the RIAA, on behalf of their son, Joel, a grad student at Boston University. Joel is accused of sharing music files online. 7 songs allegedly shared translates to $1 million in damages, according to the industry’s arithmetic, but it may not be the damages that are really what’s in question.

Here’s where things get a little weird. The hearing yesterday in Rhode Island federal court addressed a motion by the record industry to force Joel’s parents to produce their home computer, so that the computer could be inspected for evidence of illegal file sharing.  That would have made no sense, given that Joel is off at grad school, Arthur and Judie didn’t own the computer when Joel lived with them, and even the RIAA isn’t alleging that piracy took place on the computer. (You could place his uncle under house arrest and seize his parakeet as a witness, too, if you’re going to get that tangential to the case at hand.)

The hearing yesterday was rescheduled to January 6, however, because the Tenenbaum’s lead counsel – Professor Charles Nesson from Harvard Law School – was not admitted to argue in a Rhode Island court. (There’s a legal question there; I don’t think it’s just that they hate the Red Sox.)

The industry responded with a motion to prohibit any use of the parents’ computer until January 6. (Yes, Merry Christmas to you, too, RIAA.) I’m not sure what that would have accomplished, but the judge denied their request.

So, bottom line: the Tenenbaums get to hang onto their computer until January 6, and we find out what happens later.

You can expect a good fight, however. The Harvard team aren’t just defending Joel: they have a counterclaim. The basic argument: the RIAA isn’t really recovering compensation. The goal, says the countersuit, is simply to make young people, parents, and schools afraid of computer use. They are looking for damages from the RIAA, claiming that, as a criminal statute, the “Digital Theft Deterrence Act of 1999” the RIAA is using as its weapon deserves a trial by jury – and in the meantime, the RIAA has abused the law and the civil process of the courts.


Some reading on the story from elsewhere:

Legal Jujitsu in a File-Sharing Copyright Case [NY Times]

Billion Dollar Charlie vs. the RIAA [Boston Globe]

RIAA Vs. Web 2.0? Social Media and Litigation [Slashdot, on the use of social media to combat the RIAA]

Boston Illegal: Will the RIAA finally get what it deserves? [Robert Cringley editorial for InfoWorld]

Judge postpones hearing in key RIAA lawsuit [CNET News]

And for an extra oddity:

RIAA May Be Violating a Court Order In California [Slashdot]

What This is About

CDs for sale in the $3 bin, (CC) Bryan Fenstermacher

Before we get another heated discussion going, let’s consider what this case is really about. Forget for a second the record industry’s business, the real issues around piracy and the value of music online. Ultimately, this is simply the case of an industry group that has been allowed to run wild, using legal intimidation and excessive, heavy-headed techniques. Going after Mom and Dad’s unrelated PC is clearly an unnecessary invasion of privacy.

The problem is, the strategy only works until someone protests. The assumption is that applying ample legal pressure gets more would-be defendants to settle out of court, saving a real legal test and helping the RIAA demonstrate that it’s doing something. Critics have said just that for years, but this could be a high-profile repudiation of these techniques if the Harvard team can move forward.

And as for the larger issues about the industry and its business, well, what about that? The RIAA’s response to criticism, even from members and music content owners, has been that the ends justify the means. But what, exactly, is the group accomplishing on behalf of their member businesses? Is their case really so weak that they have to resort to intimidation?

Many musicians are indeed opposed to piracy – and also believe the value of music, and the relationship listeners can have with artists and labels, can protect music as a business. Music creators are aware how much income comes from relationships – from freelance work, from t-shirt sales, from teaching, from live shows, and the many ways artists and creators support themselves. The single-minded, obsessive focus on piracy that would drive the RIAA to these tactics in the exclusion of all else seems to come from some alternate dimension.

Of course, this kind of nonsense only short-circuits those discussions. And from a legal perspective, the central question remains: is what the industry doing even appropriate to the law and legal process. We’ll follow this one as it develops.