Fisking Charlie Nesson: What about Joel?

Ars Technica has "offered Professor [Charles] Nesson the chance to lay out what's at stake" in the Joel Tenenbaum case "in his own words." I hereby offer myself the chance to fisk Professor Nesson's words, in my own. Here goes...

My client is Joel Tenenbaum, a 25-year old physics graduate student at Boston University, and he's being sued by the music companies for sharing seven songs back in 2003 using KaZaA, a file-sharing network comprised of millions of his peers doing likewise.

False. Tenenbaum is not being sued for "sharing seven songs." Rather, as the record label plaintiffs have said:

Plaintiffs sued Defendant based on substantial evidence that Defendant used the KaZaA file sharing program to upload (distribute) more than 800 sound recordings—including many of Plaintiffs’ copyrighted sound recordings—to potentially millions of other users on the file sharing network. Plaintiffs also allege that Defendant used KaZaA to download Plaintiffs’ copyrighted sound recordings from other KaZaA users.

(emphasis added); see also Complaint at Par. 11 (referring to hundreds of additional "Copyrighted Recordings" listed in Exhibit B). Plaintiffs have not indicated the number of songs on which they intend to seek damages at trial (or in a motion for summary judgment).

The case has probably spent more time being discussed among the public than it has spent before judges. And, quite frankly, that is the point.

I don't begrudge Professor Nesson and his team seeking publicity -- and I'm certainly one member of "the public" who has spent probably too much time "discuss[ing]" this case. But isn't "the point" of his representation supposed to be to get the best possible result for his client? Seems to me that would be achieved by negotiating as low a settlement as possible -- not by creating a world-famous martyr with a large judgment hanging over his head.

The Recording Industry Association of America (RIAA), which directs these lawsuits, will seek to prove that Joel downloaded those songs willfully and must therefore pay up to $1,050,000 to the record labels.

This sentence is carefully worded, but it certainly leaves the impression that the labels are seeking the maximum statutory damages of $150,000 per song. That is false. Here's what the labels themselves say:

Plaintiffs...have never sought $150,000 per sound recording in any P2P filesharing case against an individual, and it has been widely reported that they were, and remain, willing to settle this case for significantly less than the minimum statutory damages.

It's worth noting that in the first Jammie Thomas trial, the labels did not ask for a specific amount, instead leaving the award within the discretion of the jury (as bound by the statute). See Trial Transcript at 606. Plaintiffs' counsel has sworn under oath that they offered to settle the entire Tenenbaum case for $4,500, to which Tenenbaum countered with $3,000, and the labels made a "final offer" of $4,000. This should have settled a long time ago.

Joel has already been interrogated for nine hours straight in a forced deposition; has been made to endure the depositions of his mother, father, sister, and friends; and will be compelled to submit his current computer and his privacy to an "expert" of the RIAA's choosing so they can make a mirror image of the hard drive for forensic analysis.

This "interrogat[ion] in a "forced deposition" is the kind of deposition that goes on in probably thousands of law firm conference rooms every day. I've listened to just about all of it, and I got the distinct impression that Tenenbaum was enjoying himself as he attempted to outsmart the labels' lawyer and drag out the proceedings with condescending smarminess:

“It would help if your client just answered questions directly instead of saying ‘it’s a 3-by-5 white device that plays video’ instead of just saying ‘it’s an iPod,’” Matthew Oppenheim, a counsel for the recording industry, informed Nesson during a break in questioning well over an hour into the deposition. “Those sorts of games really draw these things out.”

No doubt it was unpleasant for Tenenbaum to have his friends and family deposed. But if he was so concerned about that, he could have stipulated to his own p2p activities, rather than have the labels' seek evidence through others. And as for his computer, it will be examined under a quite strict protective order, whose very purpose is to safeguard Tenenbaum's privileged and irrelevant files. Would he prefer to turn over the entire thing directly to the plaintiffs and their counsel, and let them search for the relevant material themselves?

Imagine a law which, in the name of deterrence, provides for a $750 fine [the lower threshold for statutory damages] for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew she was speeding.... Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put into the hands of a private, self-interested police force that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs on the order of $3,000 to $7,000 in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines.

I've already addressed the "$150,000" red herring. But a few other points: this is a civil case (as are the vast majority of all copyright cases in the US). Ignorance of the law (and I very much doubt Tenenbaum was ignorant of it) is no defense. The plaintiffs can't do any "enforcement" on their own. Like all civil plaintiffs, they must make their case to the court, and convince it that the law and facts support a judgment in their favor. And yes, they should be able to "pocket[]" any damages they are awarded, just like any other tort plaintiffs.

The intersection between technological norms and law that governs social norms is one of the most academically interesting and practically frustrating issues professionals have grappled with in a long time. Tenenbaum is representative of his born-digital generation in every way. A problematic tension remains between our antiquated copyright laws and the social reality of "digital natives," a term my colleagues John Palfrey and Urs Glasser coined to describe the generation that grew up immersed in digital technologies and for whom a life fully integrated with digital devices that are by design free and open is the norm.

Surely, just because the laws of copyright have not yet fully acknowledged and addressed the ubiquity by which protected information is readily—and freely—available on the Internet, does not make good law moot. But this case illustrates a civil sea change rooted in the transformative nature of technology, of code as law.

The idea of "code as law" is quite profound. I bet it would make for quite an interesting book -- perhaps even one dedicated to Professor Nesson....

Justice demands, however, that one man not be pilloried without the process due him as a civil right, without good counsel, and without the most rigorous proof that he has committed the wrongs alleged.

I think it's a good thing that Tenenbaum has counsel, and he has every right to make the plaintiffs prove their case. I do think it's fair to ask, however, whether Tenenbaum's counsel is serving his client -- or, rather, his cause. In this case, the two are not necessarily the same.

Many have argued that if we want to challenge the status quo, changing the law is better pursued via the legislature, not the courts. So why do we choose to fight in court when we could potentially affect policy in other ways? The answer is simple. We did not choose the courts as a venue; the RIAA did when it waged its massive litigation campaign.

True, Prof. Nesson did not choose this venue. But once in this venue, I think his attention should be focused on getting Joel Tenenbaum out of this jam -- not on a quixotic, and likely unsuccessful, attempt to change the law.

I believe [the RIAA] ... chose to abuse our legal process by using courtrooms and judges as small claims courts.

I don't believe the RIAA is "abus[ing] our legal process." But I do think Nesson has a point about small claims courts. There is no such thing as federal small claims court, and maybe there should be. I'm also intrigued by Prof. Mark Lemley's proposal for "some sort of quick, cheap arbitration system that enables copyright owners to get some limited relief against abusers of p2p systems." But for now, regular old federal court is all we've got.

Academics and professionals have described my style as unconventional and have accused me of creating an unnecessary circus around this case. But just as Joel is David in his battle against the recording industry's Goliath, so too am I, in the fight against traditional legal norms. Hordes of professors and professionals vehemently disagree with the position I take when it comes to "fair use" in copyright law. I have also raised more than a few eyebrows with my untraditional approaches in court and the openness on my blog and Twitter feed.

Don't stop tweeting -- please!

After all, David would never have beaten Goliath if he had not taken a chance with his slingshot while all Israel looked on.

I'm confused. Didn't we learn three paragraphs earlier that "Goliath defeats David every time"?

But ... every day we fight [] my students educate hundreds of individuals about the fundamental unfairness that underlies Joel's case. If I can teach my students to educate others about justice and fairness, then we are on the path to winning a much bigger battle.

But isn't the relevant question whether Professor Nesson is on the path to winning Joel Tenenbaum's case? Signs of that are sorely lacking.