If you haven’t heard, the RIAA recently accused Joel Tenenbaum, a graduate student at Boston University, of downloading seven copyrighted songs when he was a teenager. Such extortion notices aren’t necessarily novel, but what is unique is that Tenenbaum decided to fight back and is represented by professor Charles Nesson and the students in his “CyberOne: Law in the Court of Public Opinion” course at Harvard University.
Not bad representation, especially since Nesson founded the Berkman Center for Internet & Society and has been an outspoken critic of the insidious threat RIAA’s preying upon universities and colleges poses to the mission of sharing that is at the core of educational institutions. Nesson had this to say in an op-ed titled “Protect Harvard from the RIAA” published in the Crimson Tide on May 1, 2007:
Yet “new deterrence and education initiatives” from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource [the internet]. The RIAA has already requested that universities serve as conduits for more than 1,200 “pre-litigation letters.” 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. They impose financial and non-monetary costs, including compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression.
Amen! That’s exactly what the RIAA is doing, using higher education as its unpaid muscle to scare this freshly minted population of adults, essentially putting the responsibility for playing the bad cop on universities (and more specifically IT departments) which breeds an ever-greater culture of criminality and fear when it comes to the internet as tool for sharing and re-imagining the possibilities for teaching and learning in the 21st century. So, the RIAA is not only attacking their customers, but is one of the greatest enemies of education in the US and abroad. Their tactics deter, if not outright prevent, institutions from innovating with online publishing for fear of questions and uncertainties surrounding the legality of sharing resources online—and the moribund state of educational fair use as a concept, no less a strategy for fighting back. The RIAA are a lobbying band of capitalist vampires that are sucking the lifeblood from web-based educational culture, and the logic of controlling access and preventing sharing that fear breeds keeps outdated and irrelevant learning software like BlackBoard on-campus, which costs universities an exorbitant amount and is basically useless in our moment…yet, I digress.
So, Joel Tenenbaum’s case has been shaping up since October 2008, and I just got the following news release suggesting that the RIAA is targeting Joel’s parents now:
HARVARD PROFESSOR & STUDENTS FIGHT THE RIAA:
COME TO RHODE ISLAND FEDERAL COURT
TO PROTECT DEFENDANT’S FAMILY
Now it’s his parents. Who’s next?
Cambridge, MA (December 2008) – At a Dec. 15 hearing in Rhode Island federal court, Harvard Law School Professor Charles Nesson and his team of students will defend Rhode Island residents Arthur and Judie Tenenbaum from the full might of the U.S. recording industry’s combined lobbying and litigating power. The Tenenbaums face legal pressure from the industry’s lawsuit against their son, Joel, a graduate student at Boston University accused of sharing music files online.
Nesson and his team allege that the Recording Industry Association of America and a coalition of record companies are abusing the federal court system with their litigation tactics, which attempt to make an example out of Joel and his family in the name of “deterrence.” Joel faces possible damages of more than $1 million for allegedly sharing seven songs on the Kazaa file-sharing network.
The Dec. 15 hearing will address the recording industry’s motion to force Arthur and Judie to produce their home computer so that it can be inspected for evidence of copyright infringement. The computer is not the device on which the alleged downloading took place, and Arthur and Judie did not own the computer when Joel lived with them.
“The basic rules of evidence suggest that this invasion of privacy is both unnecessary and absurd,” said Matt Sanchez, one of Nesson’s students working on the case. “This hearing isn’t only about Joel’s parents. It’s also about finally putting up a fight against the recording industry’s intimidation practices.”
The hearing is scheduled for December 15 at 10:00 AM at the Federal Building and Courthouse, One Exchange Terrace, Providence, RI 02903 in Courtroom A, before Magistrate Judge Lincoln D. Almond. Interviews will be available with Charles Nesson and his students immediately following the hearing.
For more information, please visit: http://blogs.law.harvard.edu/cyberone/riaa/.
Looks like the battle has begun, and while I think their defense is interesting, I would actually modify one thing: they are not simply “abusing the federal court system with their litigation tactics”–they’re abusing and denaturing the mission of higher education as well.
And another thing, why the hell is there only one professor and his students going this alone? Where are all the other institutions that have everything to gain from them winning this case? Who else is lending a hand? The role of colleges and universities as RIAA’s pitbull is in the balance, don’t they want to free of their abusive corporate owners?
Artists don’t need to stop sharing to make money. The only thing artists need to make money, is attention. Unfortunately, a large segment of the public is conditioned to ask the RIAA what it is they should be paying attention to. And because the RIAA is primarily interested in selling plastic discs and DRM-downloads rather than the artists they “represent” or their art, these ugly lawsuits come about when fans share that which they are told they should be paying attention to. It’s all really pathetic.
The law should allow fans to share music freely. That is just. Any musician claiming otherwise either doesn’t understand the economics of the Internet age or has already sold their copyright to a label under the RIAA (or both). The latter don’t deserve to have their opinion taken seriously anyway. If you care more about doing business with the RIAA than retaining artistic control over your work, why should fans respect your wishes? In short, you sold out.
I think that this current move by the RIAA is (unfortunately) very canny and well-thought-out.
Universities in the US have, as institutions, a crippling fear of litigation. As long as this remains true with regard to issues of fair use and copyright, we can’t really be too shocked or indignant when corporations exploit this fact.
The concept of copyright is enshrined in the constitution. But we need to look at the way this protection is framed: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Now, almost all colleges and universities receive federal funding, and “…the Progress of Science and useful Arts…” is part– whether implicitly so or explicitly so, of the basic mission of all higher learning institutions. By all rights, the extension of Fair Use should be interpreted most liberally within such institutions. We have the very notion that copyright was supposed to protect and promote at the very heart of our mission. This is not true of the RIAA, Thompson-Reuters, Lexis-Nexis, or any of their ilk.
Yet we’re the ones who stand down in the face of their demands to limit access and use, respecting their copyright. I once tried to scan a single image from a book in a university library for class, and ended up in a protracted debate about the existence of fair use with a university-employed paralegal whose entire job was doing CYA work for the University.
Until more universities start insisting that their right to fair use is protected in the very passage of the constitution that protects copyright, they will continue to be the best soft target for strong-arm techniques when it comes to copyright. We all need to get university administrators on board to this concept, and to be prepared to face legal challenges when necessary. Because too many information service providers know that most universities will just back down at the slightest whiff of litigation.
We’re all desperate for funding, coming up against budgetary demands, forced to constantly raise the cost of tuition… but that’s no excuse. We need to be willing to take stands, especially the state-funded schools. Because when you sue a land-grant school, you’re suing the deep-pocketed government, not just the (comparatively) economically feeble university.
Yeah, I think you have an excellent point there and, to add my incoherent bits, I think the very idea of the artist in our contemporary culture industry has in many ways outpaced the logic of the media. What I mean is the Hollywood actor or big name band member has become an icon that is salable–sometimes talented, but oftentimes not. So, the ways that most artists approach the very idea of a career and exposure in the music and film worlds will itself have to undergo a radical change if sharing is to be not only encouraged but expected. Quite frankly, our culture is in a crisis of talent because of the very logic you underline in your comment, namely we are all waiting for the RIAA to package the next artist for us. And a good amount of artists are also waiting for this promotion so that they can get not just paid—but rock star paid. What happened to independent promoters? Local scenes? Musical movements? What is a music movement now?–or even a film movement now? It is all just tireless repetition of previous genres, a relentless cannibalization of older forms in the name of late capital.
But, that doesn;t mean they don;t exist, it just means they’re happening elsewhere–most probably online—irregardless of any logic of distribution and compensation the RIAA and other capitalist mafias extort from the public.
What’s interesting is that the RIAA and MPAA are doing everything they can to make colleges and universities the battleground, which actually has real implications upon the culture of campuses—and the fear associated with a literal creative commons for sharing, re-mixing, and re-imagining. The heart of our culture—which I would argue is film, music, and literature—is being defined as off-limits, which in many ways makes the idea of a musician, actor, and writer that much more foreign for all of us. These interests are alienating us from contemporary culture, and the dire effects are everywhere apparent in the meager state of popular US music, film, and literary culture, as one “national” example. But, I don;t really miss it as much as I thought I would, cause I got the internets 😉
Amen and hallelujah too! Exactly, the cowering of universities in the face of litigation re-enforces the fact we all know—economics is fueling the trajectory of our disappearing rights to exercise fair use. And fair use has withered on the vine, you never really hear about it anymore—just creative commons which assumes from the very beginning the author gave you rights to re-use the work freely—which is so different than what universities need to be thinking hard about in terms of all the cultural resources we need to discuss, share, and examine critically from the past century.
In fact, that is why Nesson’s battle against the RIAA is heartening, but why GMU’s decision, as a university, to fight Thompson Reuters is pretty revolutionary—is there another example of this from a US university in the last 10 years or so? Have any of these institutions fought back in any real and meaningful way? And the more we let it go unchecked, the more it will seep into state and federal bills, and become uncontested laws that put us all on the outside of our own culture along explicitly legal lines. That’s scary to me, and it is one of the reasons I can;t yell about all this enough on my blog and on campus more generally. We are sheep mindlessly running to the slaughter, and it is an assumed blindness that will further marginalize the mission of universities more generally, which means we are not only ensuring our own demise, but the very possibility for raising these questions peacefully in some intelligent way in the future.
Thanks Tad, awesome stuff.