The RIAA’s $1 million man

He may be facing charges for breaking the law in cyberspace, but a Boston University student being sued for illegally downloading music online is basing his defense on a decidedly low-tech legal document: the U.S. Constitution.

Harvard Law professor Charles Nesson and a team of Harvard law students are defending BU graduate student Joel Tenenbaum against a $1 million lawsuit brought against him by the Recording Industry Association of America.

The RIAA filed its claim against Tenenbaum, who is pursuing a master’s degree in physics, in the U.S. district court in Boston, alleging he illegally downloaded 816 music files and distributed them to millions of people through the peer-to-peer file sharing application Kazaa. Only seven files were specified in the case, however.

Officials from the RIAA did not respond to phone messages left at its Washington, D.C. offices by press time.

Nesson argued that the process the RIAA uses to prevent copyright infringement is excessive and unconstitutional. His case challenges the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 on the grounds that the statute is a criminal statute, but the recording industry is unconstitutionally prosecuting Tenenbaum as a civil case in a federal court.

The RIAA has cracked down on illegal downloaders during the past five years, directing much of their efforts toward college students, who they claim ‘are more prone to engaging in this illegal activity than the population at large,’ according to a March 2007 RIAA press release.

In the press release, RIAA President Mitch Bainwol said music fans know right from wrong when it comes to illegal downloading.

‘No matter how much we adapt, though, any new business model must always necessarily rely upon a respect for property rights,’ he said in the press release. ‘That’s why we must continue to enforce our rights.’

Tenenbaum, who was a teenager when the RIAA first threatened to fine him, said the record companies are acting like a private police force.

‘They have all the power to corner citizens and then demand as much money as they want,’ he said. ‘It’s absurd, because most of the time it’s just one private citizen attempting to defend himself against a team of high-powered attorneys.’

Before Nesson took his case, Tenenbaum said he was defending himself with the help of his mother, a lawyer who specializes in copyright and Internet law.

‘ ‘It was a stressful period,’ Tenenbaum said. ‘I am extraordinarily lucky to have professor Nesson helping me now.’

Tenenbaum said an entire generation has grown up downloading music, and his case is not unusual.

‘I’m not some aberration of society,’ he said. ‘The way record companies handle it is corrupt. They are essentially running two businesses: selling CDs and suing people.’

John Kellog, the Chairman of Music Performance at Berklee College said he works with many artists and sees firsthand how much money and work goes into producing albums. Many artists struggle to make music without payment, he said.

‘The first thing that comes to my mind when I hear of illegal downloading music is piracy,’ he said. ‘It’s just stealing somebody else’s hard work.’

Wonderdrug records owner Ken Cmar said people who download music illegally are contributing to the ‘downward spiral’ of the record industry.

‘The bottom line is this: If you are illegally downloading music it’s theft and it’s against the law and you have to take responsibility for it if you get caught,’ he said.

Cmar added that U.S. copyright laws are ‘outdated,’ however, and should be changed to fit with new consumer needs.

‘People don’t want to pay for music these days,’ he said. ‘They don’t feel like they have to. The RIAA needs to stop suing people and start figuring out a way to make a profit while not charging consumers on every song they download.’