Judge postpones hearing in key RIAA lawsuit

Record labels face what may be their most daunting adversary so far: a group of Harvard law students and their instructor who claim the file-sharing lawsuits are unconstitutional.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read

A federal judge in Rhode Island has postponed a hearing in a case that may test the legal underpinnings of the Recording Industry Association of America's suits against file swapping.

U.S. Magistrate Judge Lincoln Almond on Monday rescheduled the hearing until January 6. Its purpose is to determine whether the parents of the defendant, Joel Tenenbaum, will be forced to turn over their computer to the RIAA's lawyers.

This case is unusual because a group of Harvard law school students, with the help of Harvard law professor Charles Nesson, is providing Tenenbaum with an aggressive legal defense. Their goal: to argue that the law the RIAA relies on is unconstitutional.

Few judges are eager to strike down laws duly enacted by Congress, and there's no evidence that the judges in this case are an exception to that rule. Still, the Harvard team is arguing that a 1999 copyright law is so Draconian it amounts to "essentially a criminal statute;" that it grants too much authority to copyright holders; and that it violates due process rights guaranteed by the U.S. Constitution.

In August, Tenenbaum's lawyers filed a countersuit in Massachusetts district court, accusing the RIAA of abuse of process and saying the law was not intended to award such "grossly, excessive punitive damages."

The RIAA has not exactly been idle. It responded with a motion (PDF) saying that "while it is clear that Defendant would rather not be a defendant in a copyright infringement suit, this is not the basis of a claim for abuse of process." More broadly, the recording industry argues that billions of songs are illegally swapped every month on peer-to-peer networks, and that as a result it has suffered "devastating" financial losses.

U.S. District Judge Nancy Gertner's courtroom in Boston is where most of the action has been taking place; the Rhode Island proceedings are a sideshow to the main event.

So far, Gertner has seemed frustrated by the large number of RIAA-named defendants who have shown up in her courtroom, typically lacking lawyers and without much knowledge of what their rights and obligations are under the law.

One hint at her possible receptivity to the Harvard students' argument can be found in her remarks at a hearing earlier this year: "There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and who don't understand their legal rights...the formalities of this are basically bankrupting people...At a certain point after 133 cases in my court and countless around the country, the plaintiffs are going to realize this is making no sense and making them look bad."