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Bush Obama sides with RIAA in P2P fight

No change to believe in

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Barack Obama's Department of Justice (DOJ) has sided with the Recording Industry Ass. of America (RIAA) in its lawsuit against a Massachusetts man accused of illegally downloading seven songs.

Here we go again.

The previous occupant of the White House also sided with the RIAA, in a similar case that ended in a mistrial - but only after a jury first found the defendant liable for a $222,000 (£152,000) fine for 24 songs she had made available for download by Kazaa.

The defendant in the Massachusetts case, Joel Tannenbaum, could be liable for over $1m (£0.7m) if the Bush Obama DOJ gets its way.

A bit of background, from Tannenbaum's point of view: In 2003 he received a letter accusing him of downloading music from a P2P service and informing him that he could avoid further action by paying a hefty fine. His counter offer of $500 (£343) was refused.

No further action occurred until 2007, when Sony BMG, Warner Records, Atlantic, Arista, and UMG Recording took Tannenbaum to court, where the judge ordered a settlement. Tannenbaum offered $5,000 (£3,430). The RIAA asked for $10,500 (£7,200). No agreement was reached

The legal song and dance has continued since then. Tannenbaum - now a physics grad student at Boston University - is being represented by a group of law students mentored by Professor Charles Nesson of Harvard Law, where he's the founder and faculty co-director of the Berkman Center for Internet and Society.

The crux of Tannenbaum's case is not whether he illegally downloaded those seven tunes. Neither is it about whether copyright law is a good thing. On the contrary, the law students defending Tannenbaum say that "We are not arguing against copyright law. As lawyers and law students, we support the legal infrastructure and reasonable enforcement that our legal system permits."

What they are arguing against is what they call unconstitutionally heavy-handed damages allowed by the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, which allows up to $150,000 (£103,000) in damages to be assessed for each "willful" violation of copyright.

And the Bush Obama DOJ disagrees.

It's the role of the DOJ to weigh in on constitutional questions, and their 39-page Sunday filing (PDF) does just that - although it first notes that: "The United States...respectfully submits that this Court should resolve any non-constitutional issues presented by the parties first if it would enable the Court to avoid the constitutional questions."

But if the court does, indeed, need to decide on the case on constitutional grounds: "It should reject each of Defendant’s constitutional claims."

The DOJ's arguments and those of the Harvard Law students are complex. At their core, however, is whether or not a private party such as the RIAA should be allowed to enforce such a blunt and ruinous instrument as the Digital Theft act as if it - the RIAA - were a civil enforcement entity, effectively denying alleged violators of due process. The DOJ thinks that's just fine; the Harvard law students don't.

It should be noted, by the way, that Vice President Joe Biden has long been a staunch RIAA supporter and that the DOJ has on its staff a raft of RIAA fans.

Fortunately, however, the US executive branch can't tell the judicial branch what to do. It can only use its legal arm - the DOJ - to make its opinions known.

It's Massachusetts US District Court Judge Nancy Gertner who's in the driver's seat on this particular ride. And unless more legal wrangling delays her decision, we should learn her response to Tannenbaum's constitutional objections to the RIAA's use of the Digital Theft act on or about March 30th. ®

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