Saturday, April 4, 2009

Ray Bilderbeck speaks! Tenenbaum team's 'designated naysayer...just as confused about all of this as you are'

Ray Bilderbeck -- the Harvard Law School student, Joel Tenenbaum defender, and alleged "schmuck" -- has taken to the web to embrace his role as the team's "designated naysayer," explaining that he is the "devil’s advocate to argue against whatever the prevailing wisdom of the team might otherwise be." It's smart! It's funny! It's honest!

Bilderbeck first achieved worldwide stardom when Professor Charles Nesson, Tenenbaum's lead counsel, posted an email chain containing internal deliberations with expert witnesses over Nesson's plan to defend Tenenbaum's peer-to-peer activities as fair use. Bilderbeck responded to Nesson's fair use theory by pointing out -- accurately! -- that it was "an argument which has no real basis in case law or moderate academic scholarship." Which earned him the infamous screed by Nesson's wife Fern. In today's post, Bilderbeck explains:
Each member of our team has a different perspective on the merits of the case, and a different perspective on the arguments that will serve us best in court. Disagreements occur on a daily basis, and none of us are scared of expressing opinions that conflict with what Professor Nesson wants to argue in court. Of course, the frequency with which we disagree with Professor Nesson varies, and I just happen to be one of the more skeptical students. In any event, I am certainly the loudest. Thus, I have become a sort of designated naysayer for the group, a devil’s advocate to argue against whatever the prevailing wisdom of the team might otherwise be. It is a position that I embrace. When [fellow students] Jen or Matt or Professor Nesson says something that I think is wrong, I don’t just politely disagree and forget about it. I scream at them. I ridicule their arguments. I try to knock them down and dance on their bones. Among my people, “schmuck” is a term of honor.
Bilderbeck also defends the team's deliberation in public of issues that lawyers virtually always hash out in strict secrecy:
I can guarantee you that the RIAA’s lawyers do exactly the same thing when they are formulating their case against us, albeit with less zeal or publicity. The difference is that we are willing to show you guys how we roll. We aren’t doing this in secret, because we want you all to get involved.
OK -- but I just hope the team is familiar with Massachusetts Rule of Professional Conduct 1.6.

Lastly, Bilderbeck sums up the big picture of the case:
I had always assumed that online filesharing was illegal....Professor Nesson is trying to change that presumption, both by attacking the copyright laws in court and by spurring a public debate on this issue. But no one has ever claimed that it is going to be easy. Ours is a hard argument to make, and it is an argument that conflicts with many of our instinctive views about the scope of copyright protection [ed.: not to mention the case law!].
That's all very interesting. But two things. First, is "court" really the most appropriate place for "attacking the copyright laws" and "spurring a public debate on this issue"? If you disagree with copyright laws, by all means ask Congress to change them, and build public support to help your cause. But you're unlikely to have much success asking a federal judge to disregard the overwhelming weight of the case law, which has soundly rejected the fair use defense in the p2p context. See Sony BMG v. Gonzalez, Napster, Aimster.

And, second -- and even more important -- what about Joel? I highly doubt it is in his interest to have his case to serve as a vehicle for a grand -- and likely unsuccessful -- attack on copyright law. His interest is probably best served by settling for a reasonable amount -- and quick. The parties were apparently once negotiating between $5,000 and $10,500. Add a chunk for the additional litigation fees that the labels have since incurred, and a reasonable settlement comes into view. Sure beats $222,000.

Kudos to Bilderbeck for taking his newfound fame in good humor. And for bringing a much-needed dose of devil's advocacy -- and reality -- to his team.


  1. I'd just like to reiterate the obvious. Holding a referendum within the courtroom on the validity of existing law is a form of professional suicide. Those who properly hold the rights, call the shots regarding their product. They have the right to give it away or to set the price and sell it. Both may prove viable business models in the future.

    But since no business should be subject to looting in the first place, no business should adapt to it. And no trial---while defending a client who admits to a clear breach of law---should be used in this way at taxpayer expense.

    Nesson. Please.
    Find a different venue for your academic musing or genuinely defend your client. On this path you will lose both ways.

  2. Ben, have you read the document where Joel motions for sanctions?

    It looks like Sony et al were at $4,000 and Joel was at $3,000. Joel tried to sanction Sony et al for not reducing their settlement amount. Looks like Joel is the real schmuck here.


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