Law Professors Lash Out at Recording Industry

Two Harvard Law School professors penned an article last month criticizing the recording industry's aggressive efforts to crack down on illegal downloading, calling on universities to resist demands to assist in the industry's campaign.

Over the past four years, the Recording Industry Association of America (RIAA) has pursued people who download copyrighted material and threatened them with lawsuits if they don’t settle out of court.

But last February, the RIAA extended these lawsuits to college students by asking universities to forward “pre-litigation” letters to students who download music illegally.

Published in the June newsletter of the Berkman Center for Internet and Society at Harvard Law School, the article entreats universities to tell the RIAA to “take a hike.”

“This move by the RIAA puts a huge burden on the social fabric of the university,” said Weld Professor of Law Charles R. Nesson ’60, one of the article’s authors and the founder of the Berkman Center.

“I think it’s extremely unfortunate that the universities have been drafted into the job of being the copyright police,” he said.

The RIAA cannot send these letters—which give the recipient 20 days to try to settle out of court—directly to the students because they can only gain access to the particular IP address downloading the copyrighted material, and not the student’s name associated with that computer.

But Nesson and Clinical Professor of Law John G. Palfrey, Jr. ’94, the executive director of the Berkman Center and the other author of the article, wrote that universities should be places where students can “learn together in a community that cherishes openness above all else.”

An RIAA spokeperson who declined to be named said that the organization hopes that the universities will cooperate and pass the letters along to their students.

As part of the RIAA’s most recent offensive, the organization has sent over 2,000 letters to universities across the country in the last five months, and RIAA President Cary H. Sherman published an opinion piece in The Crimson in April stating that for universities to ignore students who download illegally is for them to condone theft.

The RIAA began actively policing peer-to-peer file-sharing networks in 2003. In just over four years, no one has yet tested the association’s claims in court, with everyone choosing instead to settle before going to trial. “Pre-litigation” letters warn illegal downloaders that they could be fined more than $750 per song if found guilty.

“I think the RIAA has been abusive in the way they have gone about protecting these people,” Nesson said. “We could definitely use some reform of copyright law.”

According to the RIAA Web site, Harvard has not yet actually received any of these letters. But Nesson said he hopes that they would go to court in order to “quash the subpoena” if they receive any in the future.

“I’m an advocate for opposing the subpoena,” he said. “But also for doing it legally and with fair argument.”

—Staff writer Nathan C. Strauss can be reached at strauss@fas.harvard.edu.