Wednesday, June 24, 2009

Nesson: I'm 'under ridicule and attack'; Berkman Center not backing Tenenbaum defense

In what at points reads like an impassioned blog rant slapped on pleading paper, Harvard Law School Professor Charles Nesson has filed a "response" to Judge Nancy Gertner's June 16 order, in which the Boston jurist referred to Nesson's practice of "taping opposing counsel without permission" as a "violation of the law." Nesson, who is leading the defense of accused peer-to-peer infringer Joel Tenenbaum, directly takes on Judge Gertner's observation that "the important issues in this case have been overshadowed by the tactics of defense counsel":
I am not overshadowing important issues in this case by my tactics. Throughout these proceedings, I have come under ridicule and attack for attempting to make the process and public proceedings of this case accessible to the digital public. Whatever the ultimate outcome of these campaigns, which have now gone so far as to accuse me of committing a felony, I will continue to try to make as much of this case open to the internet as is possible under the law. I believe that the capacity to inform and educate the digital public is at the heart of this case and that my efforts to record the proceedings in this case are both lawful and in the best interest of my client.
I think Professor Nesson mischaracterizes the criticism he has encountered. It is not part of a "campaign." And it isn't on account of his desire to have the proceedings open to the public. I, for one, supported his effort to have district court proceedings webcast to the world; I even signed on to an amicus brief authored by the EFF (my frequent ideological foil) in support of the Internet broadcast.

Rather, the reason that I -- and countless others -- have publicized and criticized Professor Nesson's tactics is that they deviate so radically from the normal rules and practices of litigation in federal court, likely to the detriment of his own client, and prejudicing the plaintiffs, who (as Judge Gertner has recognized) have every right to sue those who infringe their copyrights. Posting emails where potential experts tell you that your primary defense is baseless is not normal. Noticing a deposition for a law school auditorium (while violating various other procedural rules) is not normal. Filing a 3-page, substance-free appellate brief, whose only citation (incorrect at that) is to a Bible verse, is not normal. Recording telephone conferences with judges and opposing counsel is not normal. Refusing to participate in meet-and-confers if opposing counsel will not consent to recording is not normal. Posting songs to a public web site, a blatant copyright violation, while litigating a copyright case about those very songs, is not normal -- indeed, it's the height of recklessness. And having a federal judge tell a Harvard Law School professor that he has committed a "violation of the law" -- yes, a law that happens to be a felony -- is so extraordinary that I'm shocked that both Harvard and the Commonwealth of Massachusetts appear to be doing precisely nothing about it.

Fighting for openness in the federal courts does not require resort to bizarre and potentially unlawful tactics. Every day, all over the country, First Amendment lawyers fight for camera access to the courts, file motions to unseal documents, and seek to open up closed courtrooms. They fight hard, and with just as much passion as Professor Nesson obviously has for his cause, but they do so within the rules. And they do so without flouting the commitment to attorney-client (and attorney-attorney) confidentiality that is an equally vital part of our legal system (not to mention an ethical requirement).

The last part of Professor Nesson's brief really goes off the rails:
Unlike the RIAA, which claims it is educating the public but acts to shut down such education, i would like to make it possible for the world to follow this case. i would like every citizen interested in the future of the net to follow the trial, hear the arguments, listen to the songs at issue, experience the witnesses, deliberate the issues, and learn the law as i believe it can and should be taught and as i do my best to teach it. Open publication of relevant court documents and commentary opens the courts to the digital public, allowing the people as much access as is possible under the law to view the trial of this case. Repressing this potential through aspersion and threats is part of what Joel is fighting back against.
Not even capitalizing "i"? Seriously? Is this is a brief in federal court written by the William F. Weld Professor of Law at Harvard Law School, or a text message from a 13-year-old to her BFF?

The first part of Nesson's brief is more sober, pointing out that his defense of Tenenbaum is in his "individual pro bono capacity," and not under the aegis of Harvard's Berkman Center for Internet & Society, which he founded and serves as Faculty Co-Director. Why is the Berkman Center maintaining its distance? I'm sure that the reason the center "declined [Nesson's] request to make the defense of Joel Tenenbaum part of its clincal program" is a fascinating story in itself.


  1. The thing that is most bizarre about this case is Nesson's re-enactment of the "crime" by posting the songs in question to the internet. (I know it's a civil case-I use the word "crime" only as a figure of speech.)

    My jaw dropped when I read that. I guess everyone should be glad that Tenenbaum is only on trial for violating copyright and that he is not on trial for murder.

    I've been debating for a while over whether I should say this or not--it might be a bit indecent of me to bring up this possibility, and I hope my speculation is wrong. But Nesson is getting up there in years. And if I remember correctly, he claims he needs to record conversations because he doesn't want to trust his memory. Couple these facts with his bizarre behavior--and I can't help but wonder if Alzheimers is setting in.

    As I said, this is pure speculation and I hope I'm wrong. But for his own benefit and the benefit of his potential clients, I hope this is the last case that he is actively involved in.

  2. The "Masked Analyst's" pure speculation of 3rd party bizarre behavior, is truely bizarre.

    Take the "Mask" off, say it again.

  3. @themaskedanalyst Really? Alheizmer's? In that audiocast he doesn't speak like someone with a neurodegenerative disorder, esp. Alheizmer's. Google him. He's *always* been crazy and he's *always* had his taping fetish.

  4. Only when He is Counsel does one see the lower case "i" pronoun.

  5. what's so offensive about a lower case "i"? does it really matteR?

  6. To the first anonymous poster--I always find it hilarious when someone who's posting anonymously tells me to take off my mask.

    To the second anonymous poster. I didn't realize that he has always had a taping fetish. That's a good sign in that I really hope my speculation is off base.

    I have a feeling this was a post that I may regret making. It certainly is one of the few times when I WANT to be wrong.

    And if anyone is taking my speculation as a serious attempt at diagnoses--well, you are a bigger fool than I am (and that's saying something.)

  7. Berkman is not rep'ing in this case because a member of the Berkman's clinic is a former attorney for EMI. There's a conflict of interest in representing. It's a simple as that.

  8. @Anonymous 5:40:

    Thank you for the information. Can you please provide some more detail? Can you name the former EMI attorney? Is he/she a faculty member, or at the center in some other capacity? If you don't want to respond in the comments, feel free to email me at

  9. Ben Sheffner June 27. 2009 7:28 AM.
    I am wondering why no attorney has yet to ask the FCC to regulate the Internet as requuired ALREADY by law?
    I have at least started to fight.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.