Sunday, December 7, 2008

Hitting Back at The Record Companies

I admit the music downloading cases are not part of my practice but they are so interesting that I cannot ignore them either. (See my earlier posts here and here and here for examples.) lexisONE(R) supplied

Law Professor Fires Back At Song-Swapping Lawsuits:
A Harvard Law School professor has launched a constitutional assault against a federal copyright law at the heart of the industry's aggressive strategy, which has wrung payments from thousands of song-swappers since 2003.

The professor, Charles Nesson, has come to the defense of a Boston University graduate student targeted in one of the music industry's lawsuits. By taking on the case, Nesson hopes to challenge the basis for the suit, and all others like it.

Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group the Recording Industry Association of America, or RIAA carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.


Entertainment attorney Jay Cooper, who specializes in music and
copyright issues at Los Angeles-based Greenberg Traurig, is convinced that Nesson will not persuade the federal court to strike down the copyright law. He said the statutory damages it awards enable recording companies to get compensation in cases where it is difficult to prove actual damages.

The record companies have echoed that line of defense. In court
filings in Tenenbaum's case, they contend that the damages allowed by the law are "intended not only to compensate the copyright owner, but also to punish the infringer (and) deter other potential infringers."

But are these lawsuits the only way the record industry could
deter piracy? Nesson believes the industry could develop new ways to prevent copyright material from being shared illegally. One idea would be to bundle music with ads and post it for free online, he says.

"There are alternative ways," he said, "of packaging entertainment to return revenue to artists.

Do I think it will be successful? No. But we can be thankful for law school professors who do not need to worry about the costs of litigation for bringing these kind of cases.

Personally, the music industry bewilders me with these kind of law suits. They are in the right on the technicalities of the law but I feel that they may be winning battles while losing the war. Customers will get turned off by the big companies and the companies will lose money. The performers and their customers will find another means of getting what they want which will cut out the companies. There also exists the chance that enough customers will get annoyed enough that Congress will change the copyright law.