Thursday, May 03, 2007

Harvard Law School Professor Urges University to Resist the RIAA

The following article appeared on the Harvard Law School website on May 1, 2007:

Professor Nesson: Protect Harvard from the RIAA
Professor Charles Nesson

The following op-ed, Protect Harvard from the RIAA, co-written by HLS Professor Charles Nesson '60 and Wendy Seltzer '96, a fellow at the Berkman Center for Internet & Society, was published in The Harvard Crimson on May 1, 2007.

Since its founding, Harvard has been an educational leader. Its 1650 charter broadly conceives its mission to include "the advancement of all good literature, arts, and sciences, [and] the advancement and education of youth in all manner of good literature, arts, and sciences." From John Harvard’s library through today’s, the University has worked to create and spread knowledge, educating citizens within and outside its walls.

Students and faculty use the Internet to gather and share knowledge now more than ever. Law professors at the Berkman Center for Internet & Society, for example, have conducted mock trials in the online environment of Second Life; law students have worked with faculty to offer cybercourses to the public at large. Students can collaborate on "wiki" websites, gather research materials from far-flung countries, and create multi-media projects to enhance their learning.

Yet "new deterrence and education initiatives" from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for more than 1,200 "pre-litigation letters." 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. They impose financial and non-monetary costs, including compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression.

One can easily understand why the RIAA wants help from universities in facilitating its enforcement actions against students who download copyrighted music without paying for it. It is easier to litigate against change than to change with it. If the RIAA saw a better way to protect its existing business, it would not be threatening our students, forcing our librarians and administrators to be copyright police, and flooding our courts with lawsuits against relatively defenseless families without lawyers or ready means to pay. We can even understand the attraction of using lawsuits to shore up an aging business model rather than engaging with disruptive technologies and the risks that new business models entail.

But mere understanding is no reason for a university to voluntarily assist the RIAA with its threatening and abusive tactics. Instead, 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. We should be lobbying Congress for a roll back of the draconian copyright law that the copyright industry has forced upon us. Intellectual property can be efficient when its boundaries are relatively self-evident......

Complete article

Commentary & discussion:



Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


rtk said...

"We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge. The old copyright-business models are inefficient ways to give artists incentives in the new digital environment."

It's great to see this truth getting more publicity.

AMD FanBoi said...

What the RIAA fails to recognize is that P2P is an amazing new way to experience music. Both the relative immediacy of being able to listen to a song that suddenly struck your fancy, and the low cost (P2P isn't completely free, and never has been) of the experience allow sampling of hundreds or thousands of songs in a way never so convenient, or affordable, before.

But even moreso than that, P2P leads one to discover music they never knew existed before. Most of all, covers and parodies of favorite songs may number in the dozens, yet you only find that out when you search P2P based on the original title search. And little known releases by favorite artists show up on P2P searches by artist that you'd never find otherwise. And this is not to mention how if a record company decides in its infinite wisdom not to re-release tracks by an artist for any of a number of reasons, how that music was simply unavailable at nearly any price in the past, short of a lucky find in a used record store. Even in today's digital market, a record company still has to release tracks to digital sale before they are available legally at all.

Reading this article summary on how Harvard has a mission including "advancement of all good literature, arts, and sciences..." it's good that they look to protect this new way of experiencing music. A way that's never existed before, and a way that brings a whole new dimension to that experience. As such, I suggest that protecting P2P is well within Harvard's charter, and worth of investigation and understanding, rather than brutal suppression.

One would hope that tangling with a couple Harvard lawyers, on top of their existing litigation workload, is more than the RIAA lawyers want to get into.

Speaking of litigating against change, it's Robert Heinlein, who said, by way of a judge speaking, in his novel "Life-Line" that:

"There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back, for their private benefit."

pepper said...

Somebody should send this letter to these two gentlemen in Congress, who apparently need some educating from the Universities...

raybeckerman said...

igor, good job on getting the word out to the right people at the right time and place...