Friday, October 31, 2008

Big Guns Come Out In Effort To Show RIAA's Lawsuits Are Unconstitutional

Thanks to TechDirt for their coverage and analysis of this issue!

from the this-ought-to-be-worth-watching dept

People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It's not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it's been brought up in court, the arguments haven't been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA's strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA's efforts in a court filing, where it's noted that the very basis for many of the RIAA's lawsuits is very likely 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.
Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.
This Court should exercise its inherent power to allow background image redress to Joel Tenenbaum for Plaintiffs' abuse of law and federal civil court process. As detailed throughout this brief, Plaintiffs are using any and all available avenues of federal process to pursue grossly disproportionate -- and unconstitutional -- punitive damages in the name of making an example of him to an entire generation of students. The case at hand warrants the use of inherent federal power not just because of what Plaintiffs are doing to Joel Tenenbaum in this Court, but because of the manner in which Plaintiffs are abusing the federal courts all across the country. Plaintiffs have pursued over 30,000 individuals in the same way they have pursued Joel.... For these 30,000 individuals, Plaintiffs have wielded federal process as a bludgeon, threatening legal action to such an extent that settlement remains the only viable option. Joel Tenenbaum is unique in his insistence, in the face of it all, on having his day in court. The federal courts have an inherent interest in deciding whether they will continue being used as the bludgeon in RIAA's campaign of sacrificing individuals in this way.
The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a "perversion of lawfully initiated process to illegitimate ends," and citing the case law that suggests such behavior should be punished by the courts: "One who uses a legal process ... against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process."

And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA's own words against it. First, the writers note (and cite the relevant cases) that even if there is a "proper purpose" behind the filing, it's an abuse of process if the primary purpose in filing the lawsuit is different than the "proper purpose" behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its "deterrence" educational program. From deterrence, Nesson shows how it's actually used as more of a bludgeon to get students to settle, which is clearly not the "proper purpose" of the law:
In essence, Plaintiffs are using the prosecution of Joel Tenenbaum to extort other accused infringers: the accused are told to either pay the settlement, or else be exposed to the protracted litigation and potentially astronomical damages that Joel now faces. See Milford Power Ltd. Partnership by Milford Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass. 1996) (holding that "the essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding"). The intimidation tactics are working: of the 30,000 accusations the RIAA has leveled against individuals, only a single defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a new trial).

The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."
This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees' nest of Harvard Law.

Wednesday, October 29, 2008

Five Ways to Get Free Wi-Fi, Even in Bad Times

The economy is in the toilet. Maybe you've been laid off (or you're worrying that the proverbial ax will soon fall at your company). It's not that difficult to foresee a bunch of bills starting to pile up at home -- one being your monthly Internet connection.

But you absolutely need Internet connectivity to do anything today: to find a new job, network with colleagues and business friends, and check your LinkedIn, Facebook and Gmail accounts, just to name a few. So as everyone looks to cut costs and everyday expenses, here are five ways to hitch a free ride on the Internet connectivity train.

1. Go to a Panera. This is, by no means, an advertisement for Panera Bread Company (though, you have to admit that their bread products and cookies are delicious), but since 2003, the chain of restaurants has offered free Wi-Fi to all its customers.

CIO Tom Kish told that Panera has "established one of the largest free Wi-Fi networks in the U.S. with approximately 1,200 cafes providing the service," and that executives "see it as another amenity for our customers."

Kish added that "free Internet access is one of a series of Panera's innovations designed to engage, connect and support our customers."

However, if you're married to Starbucks and you want access to their two-hour-a-day "complimentary" Wi-Fi access, you'll have to get a Starbucks Rewards card, put some money on the card (defeating our purpose, of course) and agree to receive some AT&T marketing e-mails. (To read an analysis of the Wi-Fi strategies at Starbucks, Panera, McDonald's and Borders, see "Should Retailers Offer Free Wi-Fi to Customers?")

You want a free lunch, too? Don't be greedy, people.

2. Visit Your Local Library. Unless you've got children, it may have been a long time since you last went to your city's or town's library. Many people will be pleasantly surprised to realize that their town's library now offers free, high-speed Internet connections, and many do so via Wi-Fi service.

According to 2007 data from the American Library Association's annual survey of technologies and Internet offerings inside U.S. libraries (pdf file), 99 percent of library branches offer Internet service to the public, and 66 percent of them offer wireless Internet access. Just make sure you keep quiet-the local senior citizens usually don't like a lot of that "noise" that young whippersnappers make.

3. Love Thy Neighbor's Connection. This one should be a last resort, because it is not legal and not secure (unless you get neighbor Bob's permission and can vouch for his attention to WLAN security protocols).

However, tapping into your neighbor's wireless signals pales in comparison to what some other desperate laptop users have done for an Internet connection: An August 2008 survey of 300 remote employees who work on company-issued laptops revealed that people can be creative and a bit nutty. A sampling of the verbatim responses might give you some (bad) ideas: "Had to climb on my mother's roof once." And: "Had to 'hack' into a phone line at a hotel to get dial-up to work." Then there's: "Turned someone's TV antenna into a wireless internet antenna." And finally: "Sat outside an airport for 4 hours so I could use the free wireless across the street."

4. Across the Pond, Visit The name of the service pretty much says it all: operates 3,500 free hotspots in 18 European countries. Simply log on to their website and find the closest one to you.

And if you're in Belgium, you can get free Wi-Fi service at the McDonald's there. (Sadly, Ronald McDonald makes customers pay for Wi-Fi service in the States.)

5. Watch This "How To" Video. We at cannot vouch for the validity of this video, whether this software actually works as shown in the video, or whether this is highly illegal, but maybe it's worth a try: "How to get Free WiFi access anywhere, anytime." (If you're at all curious, the 2 minute, 39 second video on YouTube is worth a quick viewing.)