Interview with Harvard law prof who's challenging the constitutionality of the RIAA suits


6 Responses to “Interview with Harvard law prof who's challenging the constitutionality of the RIAA suits”

  1. Anonymous says:

    from my perspective the statute is clearly unconcstitutional, and the court would be hard pressed to find otherwise. consider the supreme court exxon case which struck down as unconstitutional punitive damages which exceed a rule of thumb 10 to 1 ratio in respect to compensatory damages.

    in this case the statutory damages are many thousands of times the actual damages. that can be easily shown with basic knowledge and logic.

    so the question is, are excessive damages, bearing to relation to compensation, unconstitutional when delivered by a jury but somehow constitutional when delivered by the legislature?

    in general when the legislature wants to create radical punitive deterrents it is requied to use criminal law where defendants are entitled to special procedural safeguards. here they have avoided those constitutional protections by calling the deterent ‘damages’.

    clearly the statute violates the constitution.

  2. Kabur Naj says:

    There doesn’t seem to be an mp3 download link. Am I just missing it, or do I need to subscribe to the show using a podcatcher?

  3. David Stein says:


    I am as anti-RIAA as most folks here (maybe more so – I’m an IP attorney, and I think the RIAA’s actions are outrageously harmful to the body of copyright law.)

    However – this seems like an awfully weak complaint.

    First: It’s true that 17 USC provides some criminal penalties for copyright infringement, but it PRIMARILY creates civil causes of action by copyright owners. See 17 USC 501(b):

    “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.”

    Second: If the argument is that the law an incorrect balance of civil vs. criminal enforcement, the court has no latitude to change it. The role of the courts is to apply the laws (and to make sure that the laws don’t conflict with laws of greater authority – primarily the Constitution.) This argument is better served unto Congress for legislative changes.

    Third: If the argument is that the law is unconstitutional… well, good luck with that. The only relevant clause of the Constitution is this (Article I, section 8):

    “The Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…”

    This empowers Congress to recognize and award IP protection… but thing here suggests that the federal government must be the body that enforces those protections.

    If you own real property, you have a right to use reasonable force to remove trespassers, or to sue for tresspass – the Constitution doesn’t reserve those rights to the local government. Same with intellectual property: the owning party has some authority to enforce it (and, in fact, bears part of the responsibility for that.)

    Look – I’m all for efforts to force the RIAA to stop being an obnoxious bully in the copyright enforcement arena. But our collective efforts are better reserved for the most effective actions… rather than wasting them on lawsuits without much basis.

    - David Stein

  4. atadenglish says:

    “If this doesn’t a) fill you with rage and b) fill you with hope, you are dead inside.”

    Actually, it’s the exact opposite. Since you like xkcd so much I’ll let it be explained:

  5. Takuan says:

    interesting quote

    The Music Man

    Seymour Stein is a legend. The 65-year-old New Yorker is attending Transmission as a keynote speaker. Now a vice-president at Warner Bros., he founded Sire Records in 1966. The many bands he has signed over the years include the Ramones, Talking Heads, the Pretenders and the Smiths. In the 1980s, stuck in hospital with an infection, he still managed to sign Madonna – feeling less than presentable, the story goes, he called his barber to come in and spruce him up, before she visited him and agreed to the deal.

    Stein says the rot set in the music industry 60 years ago. “We blew it,” he says on the phone from his office in New York. “The first major music labels were all phonograph manufacturers, but by the time the Beatles came along, most companies were no longer involved in the hardware.

    “Had we remained in control of the hardware,” he adds. “We wouldn’t be hurting as much as we are now. And the iPod would be ours.”

    There are countries where the market for music will never recover, he says. “Germany used to be the third-biggest market after the U.S. and Japan,” he sighs.

    Right now, he spends a lot of time in India. “It’s the path of least resistance,” he suggests. “Four hundred million people above the poverty line – they are middle-class and they love music. They have the world’s largest English-language newspaper and they are finally getting away from Bollywood tunes.”

    He may be looking for new markets, but, contrary to the general perception of corporate executives, Stein is all about the music. He is actively searching for Indian writers and musicians to promote rather than simply pushing in Western acts.

    He brushes off questions around mash-ups and copyright law – “I don’t know anything about that” – preferring to talk about the artists he is excited about right now: Jack’s Mannequin, Canadians Tegan and Sarah and Halifax’s Meaghan Smith.

Leave a Reply