This article was originally published by WireTap magazine.

Larisa Mann

February 25, 2009

Imagine you’re driving somewhere and an armored car pulls you over. The driver says, “We know you were speeding and the penalty here is a million dollars. We’ll take you to court and investigate your whole family–unless you give us $5,000 right now.” Sounds unfair, right? Kinda scary, maybe? That’s basically what the RIAA has been doing for the past several years over alleged copyright infringement in file sharing cases.

It went like this: You’d get a letter from the RIAA saying: “We know you infringed a copyright. If we take you to court, you could be fined US$750 to $30,000 per infringement and up to $150,000 in some cases. But we won’t sue if you pay us right now. We even take credit cards…”

The letters are misleading. File-sharing is legal in some circumstances but the notices fail to mention this fact. They also assert that the RIAA knows what you did, despite the fact that they’ve targeted the wrong person in hundreds of cases.

The letters are intimidating. Even if you’re innocent, who wants to go into court against a huge corporation, especially when the penalties are so high? But just as importantly, even if you did infringe, the punishment should fit the crime and shouldn’t be handed out by a private organization.

The situation stinks. As law student Jimmy Richardson puts it: “A huge, highly organized cartel, supported by an army of lawyers, is dragging kids with no monetary or legal resources into court and trying to extort money out of them.”

Richardson is part of a legal team lead by Harvard Law professor Charlie Nesson and students in his CyberOne class who are fighting back. Together they’ve launched a suit on behalf of BU Physics PhD student Joel Tenenbaum. Their efforts represent a trend toward individuals fighting back.

People are resisting the RIAA more than ever, possibly due to negative publicity generated by their extreme tactics. The RIAA’s recent switch, from suing individuals to going after Internet Service Providers (ISPs) may not be a coincidence. But existing lawsuits like the one against Tenenbaum continue, which leaves a twisted legal environment in place.

The Tide Turns

Some, like Tanya Anderson who won back legal costs from the RIAA, are countersuing. Other law schools such as the University of Maine Law School have also been involved in resistance efforts.

But Tenenbaum’s case is unique in a few ways.

First, he responded to the RIAA’s threats with outrage rather than fear. Second, not every judge is like the one Tenenbaum faces: Judge Gertner is tech-and media-savvy enough to have a blog and has already expressed a dim view of RIAA tactics.

But just as important, Tenenbaum’s case is brought by elite law school with tremendous resources. In fact, the RIAA has avoided suing Harvard students because the school’s many legal scholars have been so staunchly critical of US copyright policy.

Additionally, Team Tenenbaum is taking a different legal approach. Their suit sidesteps the RIAA’s enforcement tactics and instead takes on larger issues such as the organization’s ability to shape the legal environment and the fact that their claims are outdated in the face of new technology. “Our legal infrastructure has not caught up with the new technologies… We need the courts to interpret law in the context of the 21st century,” says team member Debbie Rosenbaum.

Furthermore, Team Tenenbaum’s suit argues 1) The copyright law that sets outrageous penalties for infringement is unconstitutional. 2) The US isn’t supposed to let private organizations enforce the law and allowing the RIAA to act like “a private police force that is empowered to give out million dollar tickets and to use the federal courts as their collection agencies” is illegal. 3) Criminal cases have different standards for prosecution. If these are crimes, the RIAA is not following the proper rules.

Beyond Court TV?

The legal team has caused quite a stir by lobbying to webcast the courtroom arguments. “The goal is to make the case more accessible to the people for whom it matters. Not only so that they can see how and why the courts act like they do but also so they can weigh in,” says team member Aaron Dulles. These activists aren’t just making copyright policy history but also for how we engage with our legal system.

Dulles says the RIAA is resisting webcasting because they benefit from “creating a hazy cloud around what happens in the courtroom.” He says that the RIAA know that uncertainty creates fear, a potent weapon in their anti-infringement campaigns.

The RIAA also created fear via its prosecution methods. Tenenbaum, Anderson and many others describe the RIAA’s extreme practices that transform mere participation in a lawsuit into punishment. Anderson told P2Pnet: “So far, they’ve subpoenaed records from my medical providers, past employers, government records, and many others. It feels like more humiliation and invasion of privacy.” Tenenbaum also called the process by which the RIAA demands materials from him and his family “incredibly invasive.”

“There is a fundamental question of justice here. Whether this is really a fair law as it is being used, and whether we want our courts to play a part in this,” says law student Richardson.

Legally Legitimate?

Tenenbaum, Anderson and Brittany Kruger‘s stories reveal human cost of these lawsuits. Any possible harm the defendants committed doesn’t justify the RIAA’s punative procedures. However, by raising the bigger constitutional issues, Team Tenenbaum could change the balance of power in copyright policy.

Currently this is not a class action lawsuit, which means a win will get only Tenenbaum off the hook. But it could overturn the law setting statutory damages and create precedent for future cases.

Questions linger. Will Tenenbaum’s case be merely a symbolic victory if the RIAA does change tactics and prosecutes mainly IPs, or will it help the hundreds of other people the RIAA has targeted? We may not know for years. In the meantime, fighting back is tangible justice.

Humor me

: Click here to view a sarcastic matrix diagram of RIAA lawsuit logic.

Larisa Mann writes about technology, media and law for WireTap, studies Jurisprudence and Social Policy at U.C. Berkeley and djs under the name Ripley. She is a resident DJ at Surya Dub, San Francisco, and collaborates with the Riddim Method blog-DJ-academic crew, Havocsound sound system, and various other cross-fertilizing organisms in the Bay Area and worldwide.