Last week, we ran an op-ed from Charles Nesson, the Harvard Law professor waging war on the RIAA "Goliath" and its army of lawyers. Here to respond to Nesson's accusations is Steven Marks, general counsel for the RIAA. To Marks, Nesson is playing the part of a circus ringmaster, not a downtrodden "David." The views expressed here are not necessarily those of Ars Technica.

Yes, we "get it"

It is a fascinating and challenging time to work in the music business. The record industry is swept up in a sea of change and we have embraced it. It’s a new day for the business and a new day for fans—25 years ago, it was just radio and records, but today’s music marketplace is dramatically different, with hundreds of different fully licensed digital music services and models.

Yet even with this emerging legal landscape, the rights of artists, songwriters, and record labels deserve protection. Unfortunately, there are those who seem to overlook that fact, including a Harvard law school professor, his class, and their client Joel Tenenbaum, a defendant in one of our illegal music downloading cases.

We welcome a healthy debate about our decision to defend the rights of record labels and artists online. The passion that fans and commentators exude toward music is a sign of its enduring power and connection. That’s a great thing, but emotion should not obscure the facts.

Steven Marks

Let’s be clear: the best anti-piracy strategy is a vibrant legitimate marketplace rich with content and innovative business models. We get that. And that is today’s music industry. Fans can stream music at Internet radio sites like Slacker, tap into subscription services like Rhapsody or Napster, explore the great music options at social networking sites like MySpace or imeem, stream and sample songs for a dime at Lala.com, download ringtones, ringbacks and now full length songs to their mobile phones, or purchase mp3 songs at sites like Amazon.com and iTunes.

No doubt there is even great innovation and experimentation to come. Four years ago, the industry earned virtually no revenues from digital music services. In 2008, digital music became a $3 billion business and comprised more than 30 percent of the industry’s revenues.

To enable that legal marketplace to reach its full potential, we still need to educate fans about the law and illegal sites that do not compensate artists for their work.

Our anti-piracy efforts have helped to stem illicit music downloading, educate fans about the legal and illegal ways to get music online, and helped provide a foundation for the legal marketplace to grow. We are realistic. We fully recognize that online theft will always be an unfortunate challenge to our industry. Our job is to provide the right incentives to bring it under sufficient control so that this emerging legal market can reach its potential.

A circus, a crusade, a revolution

We are pleased to transition what we believe will be a more effective strategy: working with Internet Service Providers to forward notices of copyright theft directly to subscribers to point out that their illegal activity has been detected. That doesn’t mean a free pass to those who egregiously downloaded unauthorized music in the past or who refuse repeated offers to discuss a reasonable settlement.

Some defendants—including Mr. Tenenbaum, in the case pending against him—have essentially admitted to the illegal activity. Someone breaks the law, thumbs his nose at the person harmed, ignores settlement offers and then gets to walk away? What kind of message does that send and how is that fair? Waging a protracted legal battle instead of taking responsibility for one’s illegal actions is disrespectful of creators' rights, of our judicial process, and of the law.

And that’s exactly what the Tenenbaum case is: a crusade waged by a Harvard professor to gut the copyright laws that protect creators and his attempt to transform a courtroom into a "three-ring circus." Professor Nesson seeks a revolution, not a resolution or a real defense of his client. For a music community severely harmed by illegal music downloading, including thousands of working class folks out of jobs, this is no ivory tower exercise.

Even against a backdrop of an entire community suffering—hundreds of artists dropped from rosters, billions of dollars and thousands of jobs lost during the last ten years—we have strived to implement our legal campaign in a fair and reasonable manner. Professor Nesson likes to throw out astronomical damages awards but his theories are detached from reality. We’ve never once sought maximum damages in our court cases against individual downloaders. We let courts and juries decide the appropriate dollar amount for any case that reaches that far stage.

And this program has never been about the dollars—we lose money on it and any recoveries are a small fraction of the enormous toll wrought upon the music community.

Ultimately, this case, despite the legal theatrics, is just like any other: a means to an end. And that end is a vibrant, thriving legal marketplace that offers fans a rich, diverse array of models to enjoy music and properly rewards musicians and record companies for their work.