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November, 2008:

RIAA Lawsuits May Be Unconstitutional

I’ve said before that I don’t condone copyright abuses, but at the same time corporate abuse of citizens is no less acceptable.

The RIAA (Record Industry Association of America) has been waging a war against people it decides has unauthorized copies of their songs. Which often enough is found to be a mistake on their part. This is the same people who tried to lobby Congress to allow them to hack and erase the disk on any computer they thought were in violation of their copyright. To make things worse, the methods by which they identify who has unauthorized music is vague and fulled of flaws. (The fact that I think they steal from the musicians they represent themselves is another story.) I came upon this blog by known security consultant Schneier, which he in turn found on USA Today.

Briefly: “Harvard law professor Charles Nesson is arguing, in court, that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional:

“He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called “theft” in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That’s because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines.

“Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.