How it feels to be sued for $4.5m
When I contemplate the above sum, I have to remind myself what I’m being charged with. Investment fraud? An attack against the government? No. I shared music. And refused to cave
To a certain extent, I’m afraid to write this. Though they’ve already seized my computer and copied my hard drive, I have no guarantee they won’t do it again. For the past four years, they’ve been threatening me, making demands for trial, deposing my parents, sisters, friends, and myself twice – the first time for nine hours, the second for seven. I face up to $4.5m in fines and the last case like mine that went to trial had a jury verdict of $1.92m.
When I contemplate this, I have to remind myself what I’m being charged with. Investment fraud? Robbing a casino? A cyber-attack against the federal government? No. I shared music. And refused to cave.
No matter how many people I explain this to, the reaction is always the same: dumbfounded surprise and visceral indignance, both of which are a result of the amazing secrecy the Recording Industry Association of America (RIAA) has operated under. “How did they get you?” I’m asked. I explain that there are 40,000 people like me, being sued for the same thing, and we were picked from a pool of millions who shared music. And that’s when a look appears on the face of whoever I’m talking to, the horrified “it could have been me!” look.
The reason this has remained so silent despite passionate opposition is that nearly all people settle. My story of becoming an exception started four years ago.
In 2005, my parents received a letter from Sony BMG, Warner, Atlantic Records, Arista Records, and UMG Records claiming “copyright infringement”. They were given a number to call, which was their “settlement information line”, a call centre staffed by operators who, we are emphatically told, are “not attorneys”. The process of collecting money from these threats was so huge, they had set up a 1-800-DONT-SUE-ME-style call centre.
The operators did little more than ask how you would pay (they wanted $3,000, I believe) and repeated intimidating lawsuit statistics. I sent them a money order for $500, which they returned. I told them I couldn’t pay any more. We discussed whether I might qualify for “financial hardship”, and then I stopped hearing from them, which I didn’t question. I graduated from college and began studying for my physics doctorate.
And then in August 2007, I came home from work to find a stack of papers, maybe 50 pages thick, sitting at the door to my apartment. That’s when I found out what it was like to have possibly the most talented copyright lawyers in the business, bankrolled by multibillion-dollar corporations, throwing everything they had at someone who wanted to share Come As You Are with other Nirvana fans.
I had assumed that as an equal in a court of law in the United States, my story would be told and a just outcome would result. I discovered the sheer magnitude of obstacles in your way to get your say in court. And even if you get to trial, (which only one other person, Jammie Thomas Rasset, has done) you’re still far from equal with the machine controlling 85% of commercial music in the US.
But to even start fighting assumes you (a) know what you’re even being sued for and (b) have a concept of what grounds to fight it on. Most of the time you know nothing except for the huge stack of paper written in legalese that says you owe several thousand dollars and it will probably cost you more than that just to hire a lawyer. If you can find one.
I had frequent contact with one of their Colorado counsel. While she was impudent to the point of vicious (“Come on Joel, I think you did it”), I continued to use phrases like “I respect your position” and “we have a respectful difference of opinion”. I have no record of this intimidation because the person in question made sure to keep contact restricted to phonecalls.
Every conversation consisted of her trying to get information out of me about my defense, telling me how much bigger the settlement would be if I didn’t settle now. Shaken, I would call my mother, who was a state-paid lawyer in child custody cases, and ask her what to do. We blindly fired all kinds of motions at them. Eventually my mother became afraid to answer my calls, worried it would be about the case. For the court “settlement” I offered $5,250, which the RIAA declined, asking $10,500. I saw myself on a conveyor belt, being pulled inexorably toward the meshing of razor-sharp gears.
Then in summer 2008, I arrived home to find a letter addressed to me. The return address said “Harvard Law School”. Curiously, I opened and read it. “My name is Charles Nesson, professor of Law at Harvard. I caught wind of your case,” it said. “I can be of any assistance, don’t hesitate to call.” I called. Nesson picked up. I said, “Yes, you can be of assistance!” My mom drafted a letter to him, summarising where we were. The opening line read, “Dear Professor Godsend”.
Since then I’ve learned that you don’t have to accept phone contact from the RIAA lawyers, but could demand correspondence by mail. I’ve been deposed twice – for nine hours one day and for another seven a few weeks ago – where I was asked every irrelevant question about my life, cars that I owned, websites I’ve operated. The RIAA will try to denigrate this, saying I was only talking for seven hours and then five and a half, but I was stuck in their office the entire time. You think it makes any difference to me when I can’t work?
My sisters, dad and mother have all been deposed. My high-school friends, friends of the family too. My computer’s been seized and hard drive copied, and my parents and sister narrowly escaped the same fate for their computers. And the professor who supervises my teaching is continually frustrated with my need to have people cover for me, while my research in grad school is put on hold to deal with people whose full-time job is to keep an anvil over my head. I have to consider every unrelated thing I do in my private life in the event that I’m interrogated under oath about it. I wonder how I’ll stand up in a courtroom for hours having litigators try to convince a jury of my guilt and the reprehensibility of my character.
But the support helps. I’ve had a great team of Nesson’s students helping and the professor himself has been magnificent. Most of all, I’m touched by the warm messages of support from the people who’ve written in, Twittered, and Facebooked me (though I’ve been too paranoid to friend strangers lately). Best hopes to others dealing with the same: Brittany Kruger, Jammie Thomas, and the other 39,997 of us.
The trial starts today, 27 Monday July. Regrettably, it won’t be webcast as we requested due to the RIAA’s successful opposition, but we will tweet (with the hashtag #jfb) and blog as much as possible, and there is a website where you can follow us and learn more.Recipient’s email addressYour first nameYour surnameAdd a note (optional)
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