New Front Opened Against RIAA

The ebbs and flows of any legal policy battle have little to do with the obvious moral colors of it all. Often, it seems the blacks and whites of rights and wrongs are not reduced to grays but blotted off the canvas altogether. Take the RIAA copyright war on unlawful file sharing. We've got our Cowboys and Indians and the rest should all play out like a bad Western.

The RIAA claims that because copyright provides a clear mandate against its defendants its got the white hat. The moral high ground argument being that unauthorized copying and distribution is infringement period.

However, Professor Charles Nesson, a Harvard law professor, has taken up the fight on behalf of the RIAA defendants by making a wholly procedural argument. He claims that the controlling statute, Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, a criminal statute, does not provide the RIAA a private civil right to sue. Rather, says the professor, it is the government that should be the claimant. So much for black and white. And no luck for gray either.

Now some will view this as prototypical lawyerly obfuscation (i.e., the liberal smattering of over syllabled words to distract from the real issue). But procedural arguments are part and parcel of any legal debate. And where the issues concern the balance of power between industry and consumers the rules of engagement speak as much about the merits of the issue (i.e., the blacks and whites) as anything else. Unlike the typical arguments against the RIAA which attack the evidentiary basis of the RIAA’s claims, this new approach assaults the fundamental purpose of the statute. For according to the Professor, if the RIAA continues to have its way, it can unduly sue millions of people.