Billion Dollar Charlie vs. the RIAA
There was fear and trembling on the Internets earlier this month when the word went out that storied Harvard Law School professor Charles Nesson - "Billion Dollar Charlie" - had decided to go mano a mano with the most-hated institution in America. The Bush White House? No, the Recording Industry Association of America.
"RIAA Litigation May Be Unconstitutional," headlined Slashdot, a self-described "news for nerds" website. "Harvard's Charlie Nesson Raises Constitutional Questions in RIAA Litigation," trumpeted ZDNet Government. "Insane Harvard Law Professor Promises MP3 Justice," proclaimed Gawker.
Is Charlie Nesson insane? I don't think so. But he is definitely nonstandard material. One of the brilliant legal minds of his generation, Nesson merited an entire chapter in Jonathan Harr's memorable book "A Civil Action." That's where Nesson earned the monicker "Billion Dollar," by advising stripling lawyers Jan Schlichtmann and Rikki Kliman to go for the big bucks in their famous suit against
Now 69, Nesson has become something of a legend, not necessarily for the right reasons. A few years ago he spoke openly about his occasional marijuana use, and of late he has been haunting the onanistic underworld of Second Life, a computer-generated, "virtual reality" universe. But it can't be good news for the RIAA that Nesson and his student sharpies at Harvard Law have thrown their weight behind America's youth, who have been illegally downloading Internet music, like, forever.
Background: In the past few years, the RIAA has sent out about 30,000 letters to individuals and families, demanding payment for illegal downloads. You really don't want one of these letters in your mailbox, because (1) the RIAA is probably right - someone in your house has been downloading, and (2) it's an offer you can't refuse. Generally, the RIAA wants between $3,000 and $5,000 to go away, along with your assurance that the illegal downloading will stop. "Parents get these letters, and they are thinking, 'Omigod, how can I cover my [expletive],' " says Boston University graduate student Joel Tenenbaum.
Most people pay the money and run. But Tenenbaum and his mother, Judie, a family lawyer for the state of Massachusetts, chose to fight the RIAA in court, representing themselves. This summer, Judge Nancy Gertner - another of Boston's outsized legal personalities - found more than 130 defendants like Tenenbaum clogging her court, practically all of them without lawyers. "There is a huge imbalance in these cases," Gertner said at a status hearing. "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 who don't have lawyers, who don't have access to lawyers, and who don't understand their legal rights."
Judges have been granting default judgments for the RIAA when the defendants lack lawyers. That's unlikely to happen now. Nesson and his students have decided to "litigate in the court of public opinion," as well as in the courtroom, and they are putting on quite a show. Legally, they are arguing that the RIAA is using civil litigation to punish alleged criminal activity, which they say violates the Constitution. Moreover, Nesson et al have posted all manner of fascinating materials at the CyberOne website of Harvard's Berkman Center for Internet and Society.
Would you like to know what corporate lawyers do all day? You can listen to a podcast of the RIAA's interminable deposition of Tenenbaum on the Berkman site, where RIAA big Matthew Oppenheim passive-aggressively insults both Nesson and Tenenbaum for all the world to hear. Smart move? Time will tell.
Let's hear from the other side. The RIAA sent me its motion to dismiss Nesson's claims, which looks quite formidable. One recalls Kingman Brewster's famous observation: "Every proposition is arguable." They deny harassing and causing emotional distress to Tenenbaum and his family. (The RIAA deposed his sister and his father in the case.) "We make every effort possible to be fair and reasonable in bringing and resolving any lawsuit," according to a prepared statement.
What's next? Nesson would like to draft a Sam Waterston-level, big-name litigator to plead the case when it comes to trial, possibly as early as Dec. 1. See you in court!
Alex Beam is a Globe columnist. His e-dress is beam@globe.com. 