This is the defendant’s opposition to the plaintiffs’ motion to dismiss the counterclaims in the case of Sony BMG Music Entertainment et al. v. Joel Tenenbaum.  Joel Tenenbaum was sued by the RIAA for copyright infringement, and Charles Nesson, his attorney, filed a countersuit against the RIAA for abusing the court system.  The RIAA wanted to dismiss the counterclaims, and this is Nesson’s defense. 
    Nesson believes that the RIAA is trying to “…punish him (Tenenbaum) beyond any rational measure of the damage he allegedly caused.”  He believes that the RIAA is trying to FRIGHTEN the public, and its not actually seeking legitimate damages.  This intimidation is an abuse of the law.  Tenenbaum only shared 7 copyrighted songs illegally.  Nesson is challenging the constitutionality of the process, saying that due process of law is being neglected because of the “grossly excessive” statutory damages (a minimum of $750 per song with a potential maximum of $150,000).  He believes that Joel’s case should be tried in a criminal court, giving him a trial by jury.  He worries that the courts are giving “excessive prosecutorial power to private hands,” and compares the situation to hundred thousand dollar speeding tickets being given by self -interested police officers.  He reminds the court that Joel acted with no malice and made no profit, and wonders, “Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?” 
    Basically, the RIAA is just trying to scare people away from file sharing networks, and their lawsuits are unfair because no one can challenge them without facing extremely high costs.  The RIAA and the courts are exploiting the public, and they must be challenged.  Laws made by lobbyist influence are allowing the RIAA to act as a bully, and all of these defendants deserve due process of law (a constitutional right by the 14th amendment).  These are criminal matters, and they should not be tried in civil courts.  I believe that the court needs to sit back and examine the whole situation, and hopefully realize that an abuse of power is taking place.  My paper will use these points to define the RIAA lawsuits as completely unfair.  Hopefully someday the courts will prevent the RIAA from filing blatantly unfair lawsuits that are extremely difficult to fight, and with Nesson at the forefront of the battle, that day could come soon.

This is an entry from Charles Nesson’s blog.  Nesson is a law professor at Harvard University, and he is defending a man named Joel Tenenbaum who was sued for file sharing.  Nesson and Tenenbaum filed a countersuit against the RIAA, because the amount Tenenbaum would have to pay for damages would be over $1 million, which they believe to be unconstitutional.  In the entry, Nesson criticizes the fact that in 1976, lawyers and lobbyists created laws for the future of digital media, and that we must still abide by those today.  He is fighting not only the RIAA, but also the court system that is exerting power on behalf of the RIAA.  Nesson believes that claiming high damages is abusing the law.  He instructs us to, “Observe that the disproportion between actual damage caused by joel to the copyright holder and the damage mandated by the legislature to be given the copyright holder is in inverse proportion to the lobbying power of the copyright industry in the legislature compared to the lobbying power of joel and the teenagers like him who are meant to be frightened by the punitive damages being imposed.” 
    Nesson believes that people should legally be able to share music non-commercially, and that the public domain should consist of anything one can get for free on the Internet.  He thinks that the RIAA is trying to “manipulate the public mind to equate file sharing with theft.”
    I agree with Nesson on most of his points, and his ideas are probably the most important source to my paper.  The laws relating to copyrighted digital files need to be changed, and lobbyists should not be involved.  Right now, I believe that the RIAA is using the courts as its hitmen.  The courts are intimidating teenagers and carrying out every one of the RIAA’s orders.  This needs to be stopped, and fair practices need to be implemented; not the ones that rich copyright lobbyists push for.  The people being sued need a voice, and Charles Nesson has bravely taken that role.  The RIAA should not be using the courts to carry out an intimidation tactic, and the argument can be made that these cases should be tried in criminal, and not civil court. 
    Nesson believes that file sharing is not theft, which is his most debatable opinion.  From the RIAA’s perspective, their music is being stolen.  Are they guilty of manipulating us to believe this?  Or are Internet discourse and a desire for free media guilty of making us believe that it isn’t theft?  Both sides must be taken into account.
    Even if file sharing is considered theft, though, the damages being claimed are way too high.  This part of the law is definitely unconstitutional, and the laws need to be changed to accommodate today’s technology.  I am rooting for Nesson’s success.