Monday, April 6, 2009

Tenenbaum elaborates on Nesson, secrecy, 'Schmuck'-gate

Accused peer-to-peer infringer Joel Tenenbaum has posted a "note" to his legal team's web site, defending Charles Nesson's "radical transparency" and saying he's "very lucky to have" the Harvard Law School Professor as his counsel.

Despite the judicial smackdown, the recording of opposing counsel and the judge, and the public airing of internal legal discussions, Tenenbaum appears to be perfectly happy with the representation he's receiving (for free).

And just what about Nesson's habit of posting draft legal filings, internal deliberations, and other material that lawyers normally hold close to the vest? Did Nesson have permission from Tenenbaum to do that? Explains Tenenbaum:
Professor Nesson has an interesting paradigm, an almost radical transparency to his actions, which is only accentuated by the plaintiffs’ penchant for secrecy. If I have anything personal I’d like to be kept private, he respects that. As for the legal strategy in the case, he knows I entrust him to make the best decisions concerning the privacy of the case and court filings. Does this give away too much?
Interesting, and almost...lawyerly. After reading Tenenbaum's note, I'm still not entirely clear whether he actually gave Nesson the legally requisite consent to disclose confidential legal materials. Massachusetts Rule of Professional Conduct 1.6(a) provides: "A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)." Tenenbaum's note implies that he gave Nesson some sort of blanket permission to reveal confidential information, and then "entrust[ed] him" to make the decision whether to reveal specific material. Is such a blanket confidentiality waiver (as opposed to a waiver for each bit of "confidential information") effective under Massachusetts law? I don't know.

Also, Tenenbaum's reference to "plaintiffs' penchant for secrecy" implies that there's something unusual about plaintiffs' approach to confidentiality in this case. There isn't. The vast majority of lawyers -- whatever their view of copyright -- take their confidentiality obligations very seriously, and would never dream of engaging in the kind of "radical transparency" that Nesson embraces. "[P]laintiffs' penchant for secrecy" is really just their "penchant" for observing the normal rules of confidentiality.

And as to Schmuck-gate, Tenenbaum reveals: "Like the rest of this, I was curious, so I actually asked Professor Nesson, 'Does Ray care that your wife called him a schmuck?'" The gist of Nesson's answer, reports Tenenbaum, was that Ray (Bilderbeck, one of Tenenbaum's student defenders) took it all in stride. Was that conversation recorded? Where's the .mp3? Does "radical transparency" have its limits?


  1. radical transparency - try it, you'll like it, especially with a client who has committed no crime and has no reason to hide, indeed every reason to want the public to see how abusive and intrusive the process is with which riaa is attempting to crush him

  2. It appears as if Mr. Nesson is becoming "drunk on his own wine." It is one thing to publicize a matter to engender a public discussion, but quite another to take that public discussion into the courtroom and wax poetic on matters of public policy entrusted to Congress.

    I am also struck by the apparent argument that punitive damages jurisprudence is the "form, fit, function" equivalent of statutory damages, and that, therefor, the limits of the former must necessarily apply to the latter. As yet I have not seen any analysis of the policy underpinnings for each, what I deem a necessary precursor to presenting a persuasive argument for equivalency. Punitives are creatures of the common law, and in a general sense cases such as Valdez have addressed the concern of unbridled and arbitrary jury awards. In contrast, in lieu/statutory damages are creatures of our legislative process and are the result of policy decisions made by Congress. These are not trivial distinctions, so I am at a loss to understand why it seems plaintiff's counsel (and others who advocate equivalency) has thus far chosen to pursue an approach that to date has not laid what I believe is a very important factual predicate.

  3. For the creators of intellectual property, such as music, prose, lyrics, poetry, programs, performances, etc. (our fields as examples) the issue is just plain simple.

    Ask those who defend the plagiarists and the thieves to imagine themselves in this situation:

    You go to work all this week, day in, day out, all seven days. Work at your job diligently; put in overtime hours; deny yourself little pleasures, even forgo taking lunches, to get your work done extremely well.

    You are proud of your work of course, even though those around you, who work at easier jobs, might make it difficult to concentrate on it.

    Now, finally, it's payday. It's a beautiful summer day.
    You've worked hard, brought your talents into full play, even sacrificed family time to produce a superb week's work.

    hand that check over to the person who just walked up beside you.

    They are holding a surfboard by one hand and sipping a pina colada with the other while you endorse it over to them.

    Wave happily as they take your money to go buy a nice dinner for themselves before they spend the rest of the week surfing.

    Now, go back to work.


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