Copyleft academics to Nesson: fair use defense is a loser; Lessig urges jury nullification; Mrs. Nesson savages naysayers

It has become a cliché of my coverage of the Joel Tenenbaum case to proclaim, "Just when you thought the Joel Tenenbaum case couldn't get any wackier, Tenenbaum's counsel, Harvard Law Professor Charles Nesson, has now gone off and done X...." Well, just because it's a cliché doesn't mean it isn't true. So...Just when you thought the Joel Tenenbaum case couldn't get any wackier, Tenenbaum's counsel, Harvard Law Professor Charles Nesson, has now posted to his blog emails containing internal strategy discussions with several top copyleft academics in which those academics flatly reject Nesson's theory of the case. [UPDATE: Nesson appears to have removed the emails from his blog post on the morning of March 31. But...saved for posterity.] Those academics -- whom Nesson had planned to call as expert witnesses to testify on Tenenbaum's behalf -- tell Nesson in no uncertain terms that his plan to mount a fair use defense of Tenenbaum's peer-to-peer activities is a sure legal loser. And Stanford Law Professor Lawrence Lessig urges Nesson to argue for outright jury nullification: "whatever the law requires, We, the Jury, won’t allow it."

A sampling from the emails:

Lawrence Lessig, Professor, Stanford Law School:
I am surprised if the intent is to fight this case as if what joel did was not against the law. of course it was against the law, and you do the law too much kindness by trying to pretend (or stretch) “fair use” excuses what he did. It doesn’t. But if you want to argue it does, then I should think it a big mistake to include Terry on the team, or me for that matter. I have given literally hundreds of speeches where I expressly say p2p filesharing is wrong, and kids shouldn’t do it. I think FREE CULTURE says that more than a dozen times.
I should have thought instead this was a simple nullification case. Of course, it is practically impossible to frame and present a nullification case. despite the framers belief that nullification was an essential part of the jury right (at least in the context of criminal law), it has over the centuries been emaciated. but that’s the only honest frame for joel’s case — whatever the law requires, We, the Jury, won’t allow it.
Terry Fisher, Professor, Harvard Law School:
I cannot, however, testify that Joel’s activity constitutes a fair use under current copyright law, because I don’t think it does. Thus, I’m worried by your statement that “our case is fair use.” I fear that what I have to say will not contribute to that assertion. Moreover, I will be subject to cross examination, in which I will have to say the opposite.
***
My view is that it’s not credible to argue that widespread P2P filesharing has not and will not give rise to “some meaningful likelihood of future harm” to the revenues of the holders of copyrights in sound recordings and musical works.... I think you need to engage more than you have as yet with the case law in this area, which is quite hostile to your assertion that ordinary P2P filesharing is fair use. The key decisions are Napster, Aimster, and Grokster. In answer to your question, yes, I fear that failure to address the holdings (or dicta) of those decisions will give rise to a directed verdict or summary judgment against you — and you will never get a chance to make your case to the jury.

Wendy Seltzer, Practitioner in Residence, American University's Washington College of Law:
Add me to those puzzled by the “fair use” arguments. I understood the argument to be that statuory damages are inappropriate and unconstitutional in response to personal-use copying, not that such copying was within the bounds of existing law.
I think it would be more convincing to argue that Joel’s conduct was “fair” as an ethical matter than to claim that it meets the legally established category of “fair use.”
I fear that we do damage to fair use by arguments that stretch it to include filesharing — weakening our claims to fair use even for un-permissioned transformations. I am much more comfortable disagreeing with the law than claiming at this point in time that it already excuses
filesharing.
[REDACTED], Harvard Law School student and member of Tenenbaum legal team:
All of this looks very bad from my perspective. I think that introducing our experts at this late stage to the very novel argument that we intend to raise at trial - an argument which has no real basis in case law or moderate academic scholarship - is a blunder that could have very serious consequences. At this point, I have no idea what our disclosures will look like. And they have to be filed TOMORROW. Bad, bad, bad.
We should have been working on this for weeks rather than days.

And not content to waive the work-product privilege, Nesson has also waived the marital privilege, posting to his blog an .mp3 of a conversation between him and his wife Fern, in which Mrs. Nesson delivers a rousing -- and profane! -- pep talk to her husband, urging him to stick with fair use, and savaging the naysaying experts:

They're going to have to go back to the fucking cases and really consider it, instead of spouting all the shit that they're teaching their students.... And it wouldn't hurt to point out to them that you're a better case-reader than they are.

One last question: who exactly is "[REDACTED]," and why is he "such a schmuck"?
[Update on Prof. Nesson's blog: "[REDACTED] is one of my students, not ray beckerman."]
UPDATE: this is far from the first time Nesson's posting of apparently private emails and recordings has raised eyebrows. From a 2002 Crimson profile:

In addition to his formidable legal reputation, [Nesson] is know throughout HLS for his habit of frustrating other professors and publicizing confidential information.

In September, Climenko Professor of Law Charles J. Ogletree scheduled Jesse Jackson to speak at HLS, during the meeting time of several classes, including one taught by Law professor Alvin C. Warren.

Warren then sent an e-mail to a small group of faculty members, including Nesson and Ogletree, asking that the event be rescheduled.

Ogletree and Warren had a heated and personal debate over e-mail that Nesson wanted to share with students and faculty. Warren said he thought it was better not to.

Nesson shared the e-mails with his class anyway. When Warren met with Nesson to discuss the ethics of divulging the e-mails, Nesson secretly tape-recorded this conversation, then put the audio and the e-mails on his website and told students and faculty where they could find it.

The referenced Warren/Ogletree/Nesson emails are here.