Blog Ipsa Loquitur

Published on under The News

The record companies have made headlines for threatening extremely high-stakes and time-consuming litigation against people who have illegally downloaded songs on the internet. The maximum statutory penalty is $150,000 per song you downloaded. At that rate, the record company’s offer to settle the whole kerfuffle at $4,000 seems positively like a bargain.

This strategy relies on the threat of a horrible outcome (downloading a single 12 song album leaves you open to as much as $1.8 million in liability) to prevent these pirates of the internet from attempting to defend their dastardly digital deeds in court. Do note that the record companies, despite the fact that roughly 800% of all albums in America are downloaded illegally, still have enough collective resources to make defending such a lawsuit extremely expensive.

But what if the tables were turned, and the record companies were staring down the business end of a high-stakes and painfully drawn-out lawsuit?

That is the litigation strategy that the New York Times refers to as Legal Jujitsu. (N.B. if you outlaw jujitsu, only outlaws will know jujitsu.) Instead of defending against a claim of copyright infringement, the strategy articulated by Harvard’s Professor Charles Nesson attacks the copyright holder’s enforcement of criminal statutes.

Professor Nesson spends a large part of his post pointing out that Joel [the college student who has been sued by the RIAA for copyright infringement] has less lobbying power in Congress than the record companies do. He argues to the court, on behalf of Joel, that Congress lacks the ability to place enforcement power for criminal statutes in private hands, and I would tend to agree:

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.

Just as a Congressional act giving private companies the power to write speeding tickets (and keep the money from the fines) should strike you as inappropriate, Nesson is hoping that the law giving record companies the power to enforce an essentially criminal statute strikes judges the same way.

Is this the sort of thing that scares record companies into settling faster than the college students they sue? As my Contracts professor used to say, “I don’t have the foggiest idea. But put enough money on the table in front of me, and I’ll argue either way.”