Harvard Law Professor Urges University to Fight RIAA

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.'"

Comments

wow

[wellingj]

Finally some one with some integrity speaks on the matter.

Authority

[CriminalNerd]

If this gets out all over the media, people would start fighting back more since a Harvard law professor is advocating resistance, and we all know that Harvard has brand power that is rivaled by only a few other high-grade universities. If Harvard does resist, we can have a new slogan: "Fight the RIAA because Harvard's doing it."

Re:Authority

[SillyNickName4me]

If they lose this fight, they'll singlehandedly make the "Ivy League" a thing of the past. I'm not siding with the RIAA here, but the law, unfortunately, is on their side.

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

[NewYorkCountryLawyer]

From my experience litigating against the RIAA, it has no interest in the rule of law whatsoever; its goal is to make money and monopolize as much of the digital music space as it can.

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

[rde]

We should be deploying our clinical legal student training programs to defend our targeted students.
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

[null-und-eins]

Nesson's daughter Rebecca (http://www.eecs.harvard.edu/~nesson/) works on a PhD in CS after going to Law School. Hence, you can be sure that he is very well aware of the discussion inside the CS community. Rebecca won Google's Anita Borg Fellowship 2007 (http://www.google.com/anitaborg/) and I remember here as a very nice person all around.

Re:About Time

[pflickner]

Yeah, considering you can go to Borders, buy a cd, and bring it back. Oh, the policy is that you can't return open cd's, but if you whine a lot and ask to speak to a manager, you're good to go. The RIAA doesn't even go after them, so I can't figure out why they go after moms and kids.

Copyright Law

[deAtog]

With all the talk about this recently, I'm surprised someone hasn't mentioned this sooner... Granted I'm not a lawyer, but last I read, copyright law explicitly states that it is perfectly legal for students attending an educational institution to make a copy of any copyrighted work for educational purposes. Who's to say the students in question weren't doing so for this exact purpose?

law schools

[timmarhy]

i believe there's 2 things they tell you in law school 1. never sue a church - they are exempt from just about everything 2. never sue a university with a well stocked law faculty - you'll become the target of the best legal minds in the world who will have 100's of students working for free.

Finally, a ray of hope!

[nocynic]

It is fantastic and the right thing that was needed. A reputed university such as Harvard propagates the fight against the RIAA. Why does it make such a difference when Harvard does it? Well, we all know that University of Wisconsin (Madison), albeit respected, does not match to the global reputation and brand recall that comes with an Ivy league university such as Harvard. Harvard's name is familiar to everyone around the world. Students in India, China, Pakistan the UK, everyones knows of Harvard. Even the crowd that isn't aware of the education system in other countries (the US), knows of Harvard.

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.

Re:"Defenseless" is no excuse for infringement

[grimJester]

Being "relatively defenseless families without lawyers or ready means to pay" is not justification for violating copyright. I don't have the an attorney on retainer or the means to pay, but that doesn't mean I can speed or violate traffic laws with impunity. "But judge, I can't afford the ticket so I shouldn't be prosecuted" won't fly very far in court. People in this country need to start taking responsibility for themselves.

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.

Re:About Time

[Dun Malg]

Imagine, Harvard, a non-accredited school. There's not a snowball's chance in hell of that. You don't seem to understand how accreditation works, particularly with regard to highly prestigious schools. It's essentially a "Mexican standoff". Accreditation is not done by any state entity. It's not like a health department rating for a restaurant, but more like ratings by food critics. There exist many accreditation associations, some better than others. Institutions of higher education are judged on whether they're accredited by an association that's considered reputable. But by the same token, accreditation associations are judged by which schools they list as "accredited". Any accreditation association idiotic enough to boot fucking HARVARD over a non-educational issue is just asking to be laughed down to the bottom of the list, where the faux-associations that accredit diploma mills live.