Joel Fights Back

by scotslawstudent

A file sharing notice is about the most serious letter that can come “from the Internet” for anyone. This can range between a polite “stop and delete all the songs you downloaded and don’t do it again” to a flat out demand for money. There have been a vast number of allegedly speculative letters sent out asking for a cash payment for the lawyers to go away with threats, and I think in context it is legally accurate to use the word, that the situation will escalate to court action (and faced with the option of having to prove a negative in front of a court an unknown number of people have simply paid up.

It is not all bad for the general public, since the vast majority of “law firms” who will mass mail requests for money are from England these can often be turned off by pointing out that you live in Scotland and there is a jurisdictional difference. A polite response asking for “clarification” on this “confusing point” can be all that an individual needs to do to make some of the less scrupulous firms give up and head for an easier target.

There can be no doubt that some of the letters do honestly arrive to people who illegally share files but the stories of university printers being threatened with legal action only serve to create an unfavourable blacklash in the press against the heavy handed tactics that have defined the public opinion of the industry. One of the biggest issues is the lack of actual, before a judge, court cases in this area because the vast majority of people settle before it goes that far. In the US there have been two main cases – Jammie Thomas which is now declared to be a mistrial and Joel Tenenbaum. In the first case the judge commented that the damages sought were probably 1000 times too much and has now been decided to be a miscarriage of justice but the second case is going much better for Joel. Jammie Thomas’s lawyer was inexperienced in this new area of law and the defence was not perhaps as persuasive as it could be. Joel instead is being defended by Professor Charles Nesson and a sizeable group of his students from Harvard Law School who is rather more experienced in this field and has brought a surprising amount of media attention to the case and has worked hard to capture the goodwill that surrounds people defending themselves against the RIAA.

The professor is clearly a canny lawyer and the Joel Fights Back campaign is a which uses nearly as much online content as Vote Obama ‘08 and has a Twitter feed, a Facebook page, an online petition and a Paypal fund raiser (the link’s to Joel’s own, I promise) along with some fantastic features – “Think like a Lawyer (Contribute to Joel’s Defence)”, “Legal Documents” and “Share your stories”. These are designed to get the general public interested in the case and to raise awareness of the issues involved. The move to make it quite interactive is a masterstroke – the suggestion that Joe Public can suggest questions to give to the big names in file sharing litigation under oath during cross examination is a unique opportunity and one which a lot of people have already expressed interest in.

The latest move Professor Nesson attempted was to have the court action broadcast online. I would highly recommend the opportunity to watch a civil case from a foreign jurisdiction, the US isn’t too different from our adversarial selves but that doesn’t mean that watching it’s not an opportunity that few Scottish students would be able to normally have. Broaden your legal experience when this is broadcast. Or will it, because the RIAA has immediately filed an appeal to have this case heard in camera. This is interesting because it gives a strong public impression that the RIAA don’t want their litigation procedure to be aired in public.

Joel himself is quite impressive – after receiving the initial demand for $3500 he rang the number on the letter and attempted to negotiate a settlement $500 instead, he even sent them a money order for that amount. A few years later he was sent summons and the scenario I have just mentioned began.

This case bears watching because it has ramifications on nearly all Internet users and is the first time the big law teams representing the anti file sharing lobby have really been answered by any party with at all similar resources. While there have been cases of the wicker man of file sharing used as a revenue gathering tactic by the unscrupulous there are issues, such as the punitive penalties the RIAA would like to see file sharers forced to pay, which need to be finally decided in open court.

Joe’s campaign site is at