Will the Supreme Court prevent the creation of an anti-piracy ‘urban legend’?

will the supreme court prevent creation of an anti piracy urban legend supremecourtIt sounds like the start of a particularly niche joke: When is an illegal file-sharer not an illegal file-sharer? According to Harvard Law professor Charles Nesson, the answer may be when the music industry overreaches in order to try and turn one man into “an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future.”

The potential urban legend in question is one Joel Tenenbaum, who currently owes Sony BMG Music Entertainment a staggering $675,000 following a lawsuit brought by the music corporation after Tenenbaum admitted to illegally sharing 31 songs owned by the company via the Kazaa file-sharing network. Somewhat surreally, the outrageous fine – awarded in July 2009 – has already been the subject of much legal discussion, having been initially lowered to $67,500 in 2010 by Judge Nancy Gertner of the U.S. District Court in Boston who described the initial amount as unconstitutional and then reinstated to the original amount the following year by the US Court of Appeals for the First Circuit after Sony challenged Gertner’s decision.

Nesson’s description of the aim to turn Tenenbaum into an anti-pirating boogeyman came in his plea to the US Supreme Court to hear the case. In the written plea, Tenenbaum is described as “a fine and courageous young man who has just received his doctorate in statistical physics” who has found himself the victim of what Neeson calls the Recording Industry Association of America’s “profoundly unethical use of federal civil process against individuals who have neither the ability to defend in knowledge of copyright law and federal procedure nor the financial means to hire lawyers”:

By burying Tenenbaum in retrial against adversaries for whom money is no object, RIAA/DOJ will be permitted to force the only remaining individuals standing against them finally to settle like all the rest, thereby avoiding constitutional challenge and ensuring that none will be raised again. They use the asymmetric cost of litigation to make defense by the individual economically irrational.

Nesson is asking the Supreme Court to not only review Tenenbaum’s case, but also the legality of federal and corporate responses to file-sharing in the US, which are described in the plea as “procedurally unfair and profoundly unethical.” “This Court should take this case to rectify bad judicial process spawned by a too casual dictum which now has juries making appalling awards without being given any fact to find except that the defendant knew what he was doing,” he argues.

The Supreme Court is expected to decide later this week whether it will hear Tenenbaum’s appeal.