Harvard -- Music's Legal Hero of 2007 by George Ziemann -- December 31, 2007 In today's New York Times, Adam Liptak seems to cautiously support the actions of Oregon's Attorney General, who is fighting the RIAA on behalf of the University of Oregon. Liptak uses the word "surprise" a lot in his story. He's surprised, the RIAA is surprised, everybody's surprised. Except for a couple of guys in Cambridge, Massachusetts. "Represented by the state's attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices." According to Liptik, RIAA head honcho Cary Sherman was "incredulous," as echoed by the quote, "We found it really surprising and disappointing." Wow. Tens of thousands of cases and no one has effectively pointed out the RIAA's habit of spewing complete bullshit in court and providing evidence that only makes sense if you believe the bullshit in the first place. That's what I find surprising. "Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies," Mr. Myers wrote last month. "However, that pursuit must be tempered by basic notions of privacy and due process." "The larger issue," Mr. Myers said, "is whether plaintiffs' investigative and litigation strategies are appropriate." In response, the RIAA responded to these questions in the same way it addresses every question of their omnipotence, by changing the subject and launching an ad hominem attack. The record companies, in an apoplectic response in court, accused the university of having "a political agenda." They said that it was protecting people who had broken the law and that it was not entitled to raise privacy and due process arguments on behalf of its students. Cause those stinkin' pirates don't get no stinkin' due process. The RIAA has determined what the law is this week and these kids broke it. Due process is for murderers and rapists. "The litigation program, as controversial as it is often written up to be, has been very successful in transforming public awareness," Mr. Sherman said. "Everybody used to think this was legal. Now everybody knows it's illegal." The litigation program is illegal? And everybody knows it? Sounds like a guilty plea to me, but what do I know? Of course, he was really talking about p2p, but that's no more illegal than the lawsuits, maybe less. This is exactly the kind of disinformation that the attorney general is talking about. There's no law. If you avoid RIAA artists, it's suddenly not illegal. Here, put some of this stuff on p2p and share away. What's This Got to Do With Harvard? "Hundreds of universities and dozens of commercial Internet service providers have responded to the exact same subpoenas," the record companies' lawyers wrote. Yes, they have. But if you check their list of the "hundreds of universities" they have served with the "exact same subpoenas" (which is a topic of discussion all on its own), you won't find Harvard. As admirable as the Oregon AG's approach to the RIAA is, and whether or not it achieves the stated goal of illuminating the RIAA's investigative methods and judicial misinformation, it's still a reactive response to a lawsuit. Ray Beckerman has a lot of those going on, too, and he has done an exceptional job of chronicling each step. Charles Nesson & John Palfrey, both law professors at Harvard (Nesson is the founder and faculty co-director of the Berkman Center for Internet & Society; Palfrey is the Berkman Center's executive officer) inch past Myers and Beckerman by virtue of mocking the RIAA while avoiding the lawsuits entirely. In June, Nesson & Palfrey offered this sage advice: Recently, the president of the Recording Industry Association of America, Cary Sherman, wrote to Harvard to challenge the university administration to stop acting as a "passive conduit" for students downloading music. We agree. Harvard and the 22 universities to which the RIAA has sent "pre-litigation notices" ought to take strong, direct action...and tell the RIAA to take a hike. If he's "incredulous" at what Oregon is doing now, you have to wonder how Cary Sherman reacted to Harvard. I'm thinking "stupified," or maybe "dumbstruck" but that's how he always looks to me, so let's be nice and go with "scared shitless." This is evident in the RIAA's response to Nesson and Palfrey, which was to violently stab their maps with severely sharpened pencils, causing them completely forget where Harvard is, not to mention breaking their pencils. Since their aim isn't very good, they're not too sure about Boston anymore, either. Six months later, as far as I know, no one at Harvard is fighting an RIAA lawsuit targeting the university's students, making Charles Nesson & John Palfrey my heroes of the year. They didn't beat the RIAA in court. They didn't have to. They simply said, "Boo!" and scared them away.