Professor Nesson of Harvard: The University’s educational mission is broader than the RIAA’s demands

Professor Nesson: Protect Harvard from the RIAA
Charles Nesson

The following op-ed, Protect Harvard from the RIAA, co-written by HLS Professor Charles Nesson '60 and Wendy Seltzer '96, a fellow at the Berkman Center for Internet & Society, was published in The Harvard Crimson on May 1, 2007.

Since its founding, Harvard has been an educational leader. Its 1650 charter broadly conceives its mission to include "the advancement of all good literature, arts, and sciences, [and] the advancement and education of youth in all manner of good literature, arts, and sciences." From John Harvard’s library through today’s my.harvard.edu, the University has worked to create and spread knowledge, educating citizens within and outside its walls.

Students and faculty use the Internet to gather and share knowledge now more than ever. Law professors at the Berkman Center for Internet & Society, for example, have conducted mock trials in the online environment of Second Life; law students have worked with faculty to offer cybercourses to the public at large. Students can collaborate on "wiki" websites, gather research materials from far-flung countries, and create multi-media projects to enhance their learning.

Yet "new deterrence and education initiatives" from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for more than 1,200 "pre-litigation letters." Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement.

But these responses distort the University’s educational mission. They impose financial and non-monetary costs, including compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression.

One can easily understand why the RIAA wants help from universities in facilitating its enforcement actions against students who download copyrighted music without paying for it. It is easier to litigate against change than to change with it. If the RIAA saw a better way to protect its existing business, it would not be threatening our students, forcing our librarians and administrators to be copyright police, and flooding our courts with lawsuits against relatively defenseless families without lawyers or ready means to pay. We can even understand the attraction of using lawsuits to shore up an aging business model rather than engaging with disruptive technologies and the risks that new business models entail.

But mere understanding is no reason for a university to voluntarily assist the RIAA with its threatening and abusive tactics. Instead, we should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students. We should be lobbying Congress for a roll back of the draconian copyright law that the copyright industry has forced upon us. Intellectual property can be efficient when its boundaries are relatively self-evident.

But when copyright protection starts requiring the cooperation of uninvolved parties, at the cost of both financial and mission harm, those external costs outweigh its benefits. We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge. The old copyright-business models are inefficient ways to give artists incentives in the new digital environment.

Both law and technology will continue to evolve. And as innovators develop new ways of sharing copyrighted material, the University should engage with both creators and the "fair users" who follow and build upon their works. Finding the right balance will be challenging, but projects such as Noank Media, developed by faculty and fellows at the Berkman Center, provides one glimpse into what the future may hold. Just this year, Noank Media became a functioning international corporation with operations in both China and Canada.

With the goal of fostering "limitless legal content flow" through innovative licensing deals, Noank makes shared music look "free" to its listeners while reimbursing the copyright holders directly for downloads of their materials. Noank does this by serving as an aggregator, collecting payment through institutions such as libraries and schools, as well as Internet Service Providers. Forward-thinking copyright holders recognize that this system may offer them more rewards, not less control.

The University’s educational mission is broader than the RIAA’s demands. We don’t have all the answers either, but rather than capitulating to special interests, we should continue to search for fair solutions that represent the University’s mission, its students, and the law in a way that educates students to be leaders of the digital 21st century.

Wendy M. Seltzer ’96 (HLS ’99) is a Fellow at the Berkman Center for Internet & Society. Charles R. Nesson ’60 (HLS ’63) is William F. Weld Professor of Law at Harvard Law School and the founder and faculty co-director of the Berkman Center for Internet & Society.