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Q&A – Charles Nesson – Digital Theft Deterrence and Copyright Act 1999.

June 2009 – LawFuel.com – Incisive Media

Most people sued by the record industry under the Digital Theft Deterrence and Copyright Act of 1999 have settled out of court. Not Joel Tenenbaum, who is to go on trial in the fall. Sued by five record companies in district court in Boston, the 25-year-old doctoral student is represented by Harvard law professor Charles Nesson, who argues that the law is unconstitutional because it allows for “grossly excessive” awards.
Q: How big a blow was the Justice Department’s March filing arguing that the 1999 law is constitutional?

A: To do what needs to be done, we need a full head of opposition.

Q: Why do you want a full head of opposition?

A: You’re trying to penetrate with a point. You’re trying to change people’s view.

Q: Are you saying that the advent of the Internet has changed the rights that exist under copyright law?

A: No, except in the sense that the advent of the Internet changes the rights of copyright holders because they have to exist in an environment that is consistent with it.

Q: You’re not saying the Digital Theft Deterrence Act is illegally interfering with “peer-to-peer” interaction you say is best left unimpeded?

A: It may come to that, but what’s immediately being said has to do with the disproportion of the legal hammer that is being lowered on this kid.

Q: How can copyright holders earn a profit if they can’t enforce the kind of law that you’re contesting?

A: With the Net, there are artists who are figuring out ways to profit without using this clout of the copyright law.

Q: What does that mean for the record companies?

A: I believe the recording companies have great skills to offer artists, and there may need to be some reshuffling in the way those skills are passed around and the ways in which revenue is returned.

Q: You want to webcast the proceedings. Why?

A: We see ourselves as representing the public interest. And what a fantastic opportunity, to tune in on a case being litigated by all this high-powered talent.

Q: Will you go all the way to the U.S. Supreme Court, if necessary?

A: Sure.

Q: If you should prevail, what precedent would the case set?

A: Well, it depends on what happens as it goes along. To get to the framing of the issue for the jury, there will be a lot of decisions being made. I suspect every single one of them will get duked out in some way.

Q: And what do you think will come out of all that duking?

A: It will be an exploration of an issue that I think the country needs to face up to: What is the role of copyright in the national strategy of the United States?

Q: Why is that so important for this country to face up to?

A: If you see the United States in a competition with other nations in a digital world, and you think the best asset you have for the future are your own children, who will become the digerati, who think imaginatively in that environment, you will be against the idea that you use the law, the power of the state, to make those learners fearful of clicking on the Net.

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