Post Date: June 7, 2004

Harvard Law School’s Berkman Center for Internet and Society recently submitted an amicus brief that has played a pivotal role in a lawsuit regarding music downloading. The case, Capitol Records, et al. v. Alaujan, et al., joins 55 suits filed in Boston by the recording industry against individuals accused illegal file-sharing on peer-to-peer networks. The court’s subsequent order in the case urges both recording industry representatives and defendants to examine the Berkman Center brief and the questions it raises before entering into settlement agreements.

Berkman Center Clinical Director Diane Cabell explains that one challenge the brief addresses is cost: “The financial reality is that the cost of defending one’s rights generally exceeds the proposed settlement offer, therefore many defendants choose not to fight back. We offered the brief in the hope that it would help the court to resolve these cases in a fair and efficient manner, despite the lack of equal representation.”

The brief, which was prepared by clinical students and faculty, was not filed on behalf of any particular party in the case. The document examines some of the factual complexities in the case, such as possible errors in the methods by which users are identified, as well as more substantive legal issues such as potential fair use defenses and the question of whether merely storing files in shared folders violates the plaintiffs’ rights of public distribution.

“This is a terrific example of what a public interest-oriented research center can contribute,” said Assistant Professor Jonathan Zittrain, faculty co-director of the Berkman Center. “The students and faculty of the Berkman Center have tried to really explore the issues of fact and law in this case in a genuinely ‘friend-of-the-court’ fashion.”

Second-year HLS students Renny Hwang and Ory Okolloh, clinical students at the Berkman Center who worked on the brief, explained that teamwork was essential in their research: “The amicus brief was the product of hard work, creativity and endless hours of effort from the team. The court’s decision is extremely rewarding, and a testament to the cooperation of the entire group.”