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.'"

Believe you to be mistaken.

[adam]

I am also not a lawyer, but I don't believe what you are positing would fall under fair use. In 1989, Kinkos was found guilty of copyright violation [answers.com] for copying substantial portions of textbooks (up to 100 pages at a stretch), and fined $1.9M plus court costs.

Basically (as I understand it) there are several factors that fall into the test for fair use. First, is whether the use is for commercial or non-profit use. In this case, copying the music would probably pass the test. The second test is whether the work is "creative" or "informational" in its origin. In this case, the deck would be stacked against a student copying the average RIAA CD for "educational" purposes, as the work itself is probably of a creative nature. The third factor is the scope of the portion used. Simply put, the less you use, the more chance it is fair use. So copying a whole CD wouldn't pass this test. Copying a whole "hit" song probably wouldn't either. There was an actual case where a church choir director was found guilty of copyright infringement for copying essentially all of the lyrics (or something like that) from a song, arranging it to his music, and distributing copies to his choir. It was found that despite his good faith desire (not to infringe), he was still infringing. I recall the famous instance of Gerald Ford's memoirs as well, where only a few hundred words of his 100,000 word work were reprinted, and the supreme court found in his publisher's favor.

So.. in summary, I think you are mistaken. It (copyright law) doesn't state what you think it does, and the test for fair use definitely isn't "explicit" (as you said).. it is rather subjective. Nice shell game, though. Anyone who is a real lawyer, feel free to respond and repudiate my whole post ;)

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.

Reminds me of something reported in Australia

[Gangrenous BoB]

"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."

This reminds me of something the ARIA wanted to/wants to implement in Australia. http://www.news.com.au/story/0,10117,21555941-2,00 .html?from=public_rss [news.com.au]

"Under this system, people who illegally download songs would be given three written warnings by their Internet service provider.

If they continued to illegally download songs, their internet account would be suspended or terminated.

Those with dial-up internet could face having their phone disconnected."

Re:wow

[iElucidate]

On the contrary, Nesson had a short yet distinguised legal career [wikipedia.org] prior to joining the HLS faculty.

Re:Copyright Law

[cpt kangarooski]

No, that's not true. Making unauthorized copies of a copyrighted work is never permitted for any reason unless it either falls under fair use (which is on a case-by-case basis; some backups would be ok, others would not be, it depends on the circumstances involved), or there is some other exception in the law that applies (e.g. 17 USC 117, which only applies for software, but in practice, hardly ever).

Nice try, though.

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.

Harvard's policy

[Anonymous Coward]

It is Harvard's policy that when they get a legal notice from a copyright holder, they forward it to the infringing network user, warning that user that a second infraction will result in network privilige termination. They do not however pass on the information to the copyright holder. In other words, Harvard protects its students from litigation, but they won't hesitate to cut off one's internet access. As an undergrad who has gotten one such letter, I can safely say that they do their best to scare the pants off you. Here is what their notice looks like:

Copyright Violation
Incident No:
MAC Address:
DMCA Ref No:

Harvard University has received a legal notice from *** alleging that copyrighted material was transmitted from your computer through the Harvard network. This is a serious allegation; the transmission may be a violation of federal copyright law and Harvard policy. Please see: www.dmca.harvard.edu/copyright_policy.php

The legal notice contained the following information:

IP address:
Date and time of transmission:
Copyrighted material transmitted:

Our network logs indicate that the IP address was assigned at the identified date and time either to your computer or to a computer you were logged into.

If you believe that your transmission was not a copyright violation, was the result of a security compromise on your computer, or that you are otherwise not responsible, please respond promptly with an explanation. We will assume that you transmitted the copyrighted material identified above in violation of the copyright laws if we do not hear from you within five business days. If you have been using your network access to download, copy or distribute copyrighted material in violation of the copyright laws, as is possible using peer-to-peer file sharing programs, you must cease and desist immediately.

You should be aware that federal copyright law permits copyright owners to file lawsuits against alleged infringers for monetary damages and permits the government to file criminal charges in certain cases of willful infringement. In appropriate circumstances, Harvard will terminate the network access of users who are found to have repeatedly infringed the copyrights of others. We will terminate your network access if we receive any future notice that you have again violated the copyright laws, unless you promptly demonstrate that you are not at fault. You will be responsible for dealing with the burden that loss of your network access may impose on your ability to fulfill academic requirements.

Additional information about copyright law and relevant Harvard policies is available at: www.dmca.harvard.edu/faqs.php

Computer Security Group FAS Computer Services
Harvard University Cambridge, Massachusetts

[e-mail]

Bindi ng Start Time:
Binding End Time:

Re:Rule 11 or Rule 37

[NewYorkCountryLawyer]

Well I don't know, but I do know that in Capitol v. Foster [blogspot.com] the judge concluded that their case against Debbie Foster was "marginal" and "untested" and is slamming them with what I expect to be a pretty big attorneys fees award.

You've got to remember, we're very early in the game....It is only recently that the real fighting back began, and court cases take time.

I expect we'll be seeing Rule 11 sanctions against them down the road....