Thomas Sydnor has a very interesting post at the Progress and Freedom Foundation's blog, making a compelling argument that Harvard Law School Professor Charles Nesson's views on the copyright issues raises by peer-to-peer uploading and downloading have undergone some dramatic changes since the days when he weighed in as an amicus in the Grokster case.
The whole thing is worth reading, but what really struck me was Sydnor's discussion of a May 2004 amicus brief in Capitol Records, Inc. v. Alaujan (with with the Tenenbaum case was consolidated), and authored by Nesson and several colleagues at Harvard's Berkman Center for Internet and Society. The amicus brief is a lengthy primer on issues raised by the record labels' suits against individual p2p users. Of particular relevance to the Tenenbaum case -- especially given Nesson's recent indication that he intends to mount a fair use defense -- is that the 2004 brief is extremely skeptical that a fair use defense would be successful in the p2p context. Said Nesson's brief of the argument that downloading in order to "sample" a song before purchase is fair use: "not...compelling" (p. 5). As to uploading: "Fair use arguments in regard to uploading are weak." (p. 5). See additional discussion of fair use at 32-42. I'm not sure I'd go so far as to claim, as does Sydnor, that Nesson is guilty of "sophistry." But it will take some awfully fancy footwork for the professor to explain away his words from 2004 if the fair use defense actually does get litigated in Tenenbaum.
One last comment on Sydnor's post. "Nessianic influences"? Genius.