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Harvard Law Professor Urges University to Fight RIAA
Posted by
CowboyNeal
on Sat May 05, 2007 01:56 AM
from the you-know-you-want-to dept.
from the you-know-you-want-to dept.
NewYorkCountryLawyer writes "Distinguished Harvard University Law School Professor Charles Nesson has called upon Harvard University to fight back against the RIAA and stand up for its students, writing 'Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement. But these responses distort the University's educational mission. ...[W]e should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students.'"
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RIAA Targets New Colleges, Still Avoids Harvard 159 comments
NewYorkCountryLawyer writes "Billboard reports that the RIAA has filed its eighth round of 'early settlement' letters to twenty-two colleges. Continuing its practice of avoiding Harvard, the RIAA's new round does not include any letters to that institution, where certain law professors have counseled resistance to the RIAA and told the RIAA to 'take a hike'. The unlucky institutions on the receiving end of the 403 new letters include Arizona State University (35 pre-litigation settlement letters), Carnegie Mellon University (13), Cornell University (19), Massachusetts Institute of Technology (30), Michigan State University (16), North Dakota State University (17), Purdue University — West Lafayette and Calumet campuses (49), University of California — Santa Barbara (13), University of Connecticut (17), University of Maryland — College Park (23), University of Massachusetts — Amherst and Boston campuses (52), University of Nebraska — Lincoln (13), University of Pennsylvania (31), University of Pittsburgh (14), University of Wisconsin — Eau Claire, Madison, Milwaukee, Stevens Point, Stout and Whitewater campuses (62)."
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RIAA Afraid of Harvard 425 comments
NewYorkCountryLawyer writes "According to a report on p2pnet.net, the RIAA's latest anti-college round of "early settlement" letters targets 7 out of 8 Ivy League schools, but continues to give Harvard University a wide berth. This is perhaps the most astonishing display of cowardice exhibited to date by the multinational cartel of SONY BMG, Warner Bros. Records, EMI, and Vivendi/Universal (the "Big Four" record companies, which are rapidly becoming less "big"). The lesson to be drawn by other colleges and universities: "All bullies are cowards. Appeasement of bullies doesn't work. Standing up to bullies and fighting back has a much higher success rate.""
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wow (Score:5, Insightful)
Re:wow (Score:4, Funny)
Re:wow (Score:5, Informative)
Authority (Score:5, Insightful)
Re:Authority (Score:4, Insightful)
-why did we fight riaa anyways?
-i dunno lol, harvard was doing it
Re:Authority (Score:4, Funny)
Not really, they learn why they should have went to Harvard.
Re:Authority (Score:5, Insightful)
Re:Authority (Score:5, Insightful)
The law isn't on their side when it comes to going on a fishing expedition. Also, the number of cases that the RIAA has won in court so far (that is NOT the same as people settling) isn't very high, and their cases being thrownn out isn't exactly unheard of..
I'd rather think that a law professor has some idea about this, and about the legal risks in general. I would even go as far as suggesting that he probably has a lot more of an idea then you and me together.
Are these colleges prepared to take the risk of losing everything to stand up for their students?
Is this society prepared to destoy such colleges and their future in order to protect the ill-gotten exclusive rights of an industry that is doomed to failure?
Re:Authority (Score:5, Informative)
1. Although the Federal Rules of Civil Procedure encourage the making of all motions on notice, the RIAA does everything it can ex parte. The John Doe proceedings and motion for discovery are initiated without notice to anyone, even though it would be a simple matter to furnish the university, college, or ISP with copies of the motion and other papers, which could in turn be disseminated to the "John Does" to enable them to consult with counsel and take action if so advised.
2. The RIAA joins unrelated John Does, also in total contravention of the Federal Rules of Civil Procedure.
3. In 2004 the federal district court in Austin, Texas, enjoined the RIAA to cease and desist from that practice. The RIAA has been in contempt of that order ever since, merely taking care to avoid litigating in Austin, Texas.
4. The RIAA conducts a sham investigation which, at best, identifies a person who paid for an internet access account... and then turns around and sues that person without any information that that individual is actually liable for copyright infringement.
5. The RIAA has invented a claim for "Making available" even though there is no legal authority.
6. The RIAA has invented a concept of an "online media digital music distributor", and uses it to tarnish people who've never engaged in file sharing in their life.
7. The RIAA never honors its pretrial discovery obligations, taking advantage of the fact that most defendants do not have the resources to engage in a constant stream of motion practice in order to get even the most rudimentary discovery.
8. It makes frivolous assertions of "privilege" and "confidentiality" solely to make litigation more expensive for defendants in other cases.
9. The RIAA will disclose, and distort the contents of, confidential settlement discussions.
I could go on and on. But to anyone who thinks the RIAA is trying to enforce copyright law.... think again.
The key, for me, is that our system of law is an adversarial system. For there to be fair outcomes there needs to be a fight of equals, a level playing field. The RIAA has embarked on a program of using colossal wealth to prey on defenseless victims, so that it can rewrite copyright law in a way that will maximize the recording industry's wealth. And it tramples on their civil rights in the process. ACLU, Public Citizen, the Electronic Frontier Foundation, the Amerian Association of Law Libraries. the US Internet Industry Association, the Computer & Communications Industry Association, and others have submitted amicus curiae briefs pointing these things out.
The article written by Prof. Nesson and Ms. Seltzer is a landmark.
The key message for the university, in my view, is this: "we should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students."
Harvard should make sure that the due process rights of its students are protected.
Interesting possibilities (Score:5, Insightful)
Ooh, this raises some intriguing possibilities. If a university's legal faculty 'n' lawyers-to-be rally around the students, a whole body of experience will quickly build up. By the time they become fully-fledged lawyers, a whole bunch of students will be familiar with the xxAA and their tactics.
Could lead to some interesting exam projects, too; "Find a granny being sued by the RIAA and prepare a suitable defense. For bonus credit, find a granny who doesn't have a computer but is being sued by the RIAA."
His daugther works on a PhD in CS at Harvard (Score:5, Interesting)
Thank you (Score:5, Insightful)
Copyright Law (Score:5, Interesting)
Believe you to be mistaken. (Score:4, Informative)
Basically (as I understand it) there are several factors that fall into the test for fair use. First, is whether the use is for commercial or non-profit use. In this case, copying the music would probably pass the test. The second test is whether the work is "creative" or "informational" in its origin. In this case, the deck would be stacked against a student copying the average RIAA CD for "educational" purposes, as the work itself is probably of a creative nature. The third factor is the scope of the portion used. Simply put, the less you use, the more chance it is fair use. So copying a whole CD wouldn't pass this test. Copying a whole "hit" song probably wouldn't either. There was an actual case where a church choir director was found guilty of copyright infringement for copying essentially all of the lyrics (or something like that) from a song, arranging it to his music, and distributing copies to his choir. It was found that despite his good faith desire (not to infringe), he was still infringing. I recall the famous instance of Gerald Ford's memoirs as well, where only a few hundred words of his 100,000 word work were reprinted, and the supreme court found in his publisher's favor.
So.. in summary, I think you are mistaken. It (copyright law) doesn't state what you think it does, and the test for fair use definitely isn't "explicit" (as you said).. it is rather subjective. Nice shell game, though. Anyone who is a real lawyer, feel free to respond and repudiate my whole post
law schools (Score:5, Insightful)
Re:law schools (Score:4, Insightful)
Yeah real smart for the **AA's to go marching into a den of hundreds (if not over a thousand) highly vicious (Type-A personality) lions (Lawyers). (parenthetical commentary FTW)
Finally, a ray of hope! (Score:5, Insightful)
So, Harvard fighting the RIAA, if publicized correctly by the media, will get the attention of everyone around the world. Take the MIT dean issue that came up recently, for example. That was splashed all across the news channels everywhere in the world!
I am currently in India and it was quite a talk here when the MIT news came out. I'm talking about local news channel covering the story! If the same happens with Harvard's move, is could almost be certain that people can will be educated more about the problem and its impact on internet downloads.
Reminds me of something reported in Australia (Score:4, Informative)
This reminds me of something the ARIA wanted to/wants to implement in Australia. http://www.news.com.au/story/0,10117,21555941-2,0
"Under this system, people who illegally download songs would be given three written warnings by their Internet service provider.
If they continued to illegally download songs, their internet account would be suspended or terminated.
Those with dial-up internet could face having their phone disconnected."
One statement bothers me... (Score:4, Insightful)
"We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge."
Now, I may not be a lawyer, but I am a professional writer, and an author, and part of my profession requires me to have a working understanding of copyright law. So, this statement bothers me for a couple of reasons:
1. It does not differentiate between copyright law and patent law. Copyright law is actually quite good at allowing for the promotion of knowledge, as you cannot copyright an idea - only the exact implementation of one. Patent law, on the other hand, has become very restrictive in regards to the promotion of knowledge, and you CAN patent an idea. (You can patent a tax strategy, for crying out loud.)
2. I don't know enough about 19th century copyright law, but frankly, 20th century copyright law based on the Berne Convention is quite good at what it does, and doesn't really need to be fixed. At best, it needs minor modifications.
Expanding on the second point, there seems to be a "shiny thing" reaction in the copyright industry in regards to the Internet, and it really does miss the point. The RIAA, legislators, and even some lawyers are spending a lot of time panicking in awe at the shiny new Internet and what it can do, and failing to notice that at the end of the day, a work is either infringed or it isn't, just like it was before the 'net. As far as the actual letter of the law is concerned, how it got that way is really unimportant.
(Think of it this way - somebody figures out how to commit a murder over the Internet by making his/her victim's keyboard deliver a deadly electric shock. Do the murder laws now need to be rewritten? Of course not - at the end of the day, it's still murder, plain and simple.)
If you look at the Berne Convention, you see:
1. Respect for the creator's wishes for their work.
2. Ability for the creator to transfer rights and copyright.
3. Allowance for fair use and the use of ideas, but not exact implementations, in derivative works.
4. Allowance for public domain.
5. A recognition that these rights and provisions apply to new media.
If you think about it, it's simple, covers all the bases, allows for everything from Creative Commons to the Open Source movement to a novelist receiving royalties in any media - and has been around in its current form since the 1970s. I wouldn't call it a broken tool at all. I just wish people would stop panicking because there's a new shiny thing and coming up with daft measures (Vista-style DRM anybody?) to protect against it.
Unfair Copyright Laws are Creating This (Score:4, Insightful)
Existing works had already been created under the copyright laws of the time. (28 years plus one extension of 28 more years). The laws fully served their purpose of encouraging the creative arts. No change in the law afterwards would change what had been done. These works should have moved into the public domain, where new artists could freely use them to create even newer works to enrich society. Instead, the content creation industry got Congress to enrich them by extending unreasonably the time of protection. Congress did not represent the people at large that day.
The President failed in his job by signing this bill, and The Supreme Court failed miserably in their job of understanding the intent in the US Constitution by upholding the unwarranted extensions. And the court system now fails even more miserably by permitting the RIAA suits to exist in the first place, and then be dropped in ways that cost never-convicted defendants tens of thousands of reimbursed dollars, the moment the RIAA might lose. All this while the RIAA tries to trick the courts into granting them rights never included in the original legislation. If the RIAA can fool uninformed judges into creating precedents to be used in future cases, they will have de facto created new law for themselves.
Filesharing should be viewed as an act of civil disobedience against an industry that has received out-of-proportion, and unconstitutional, protection from all three branches of the government.
Re:About Time (Score:5, Insightful)
Re:About Time (Score:5, Informative)
Re: (Score:3, Interesting)
Re:Professor's downloads? (Score:4, Insightful)
The licensing cost wasn't so much the issue (something like $30/year (USD) on a given example. The hard pill to swallow, is it required a bunch of paperwork, with two weeks to review, and decide if to grant or decline license for the song. But worse still is that it would take up to and beyond 8 weeks to actually grant said license.
Upon reviewing several thousand songs over several hours from garageband.com, we found one creative commons song that was suitable. And got permission from the author of another, very appropriate song, for use of it... The songs are encoded, and embedded into flash files, and streamed at a lower quality in mono (mainly for bandwidth issues). As much as the system in play for online/internet radio sucks... it would be nice to have a better interface for licensing a song for playback on a website, without direct access to a higher quality digital recording... One shouldn't have to jump through so many hoops...
On a side note, at least now my wife, and a few relatives have a much better understanding of how F'd up copyright law is, between this issue, and trying to get copies of photos for use at the funeral.
Re:"Defenseless" is no excuse for infringement (Score:5, Insightful)
You presuppose that they are guilty, which is not the way the law works. Innocent until proven guilty, and these students have not been proven guilty. In addition, they have a right to defend themselves regardless of whether they are innocent or guilty. As things stand, they don't have the resources to defend themselves. The professor is proposing that they be given the resources to do so.
Even the guilty should be able to defend themselves in court.