• by Wendy Davis , Staff Writer @wendyndavis, October 29, 2008

In recent weeks, two federal judges have criticized the record industry's attempts to extract exorbitant sums from alleged file-sharers, who might have uploaded/downloaded tracks on peer-to-peer services, but only for personal use as opposed to profit.

In one case, judge Michael Davis in Duluth, Minn. pleaded with Congress to revise the copyright law so that individuals like Jammie Thomas, who a jury found liable for uploading 24 songs to Kazaa, wouldn't face astronomical fines. The jury in the case had ordered Thomas to pay $220,000, but Davis last month set aside the verdict and ordered a new trial for reasons unrelated to the size of the award.

Also, Judge Xavier Rodriguez in San Antonio, Texas recently fined 20-year-old Whitney Harper $200 a track for file-sharing -- significantly lower than the $750 a track set out in the statute. Rodriguez departed from the minimum on the theory that Harper, a high school student at the time she shared files, was an "innocent infringer."

Now, Harvard Law professor Charles Nesson is asking a court to declare the statute the RIAA is relying on unconstitutional.

Nesson, who is representing Joel Tenenbaum, another teenager at the time of the alleged file-sharing, writes: "The plaintiffs and the RIAA are seeking to punish [Joel Tenenbaum] beyond any rational measure of the damage he allegedly caused. They do this, not for the purpose of recovering compensation for actual damage caused by Joel's individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future."

There's no real question the record industry has seen revenues fall because of file-sharing. At the same time, the RIAA's campaign against individual users appears grossly random. The record labels have targeted around 30,000 unlucky individuals who have allegedly used a peer-to-peer service to share tracks. But that's out of millions of file-sharers.

And while CD sales have plunged, no individual user is responsible for the billions in lost revenue.

Obviously, the record industry needs to figure out new ways to bring in revenue, whether by ad deals, selling concert tickets or some other business plan. But suing ordinary music-listeners into bankruptcy is no way to save an industry.