Monday, March 30, 2009

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
[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.


  1. This comment has been removed by a blog administrator.

  2. I'd certainly say this raises ethical "issues." Whether they rise to the level of "problems" remains to be seen. Massachusetts Rule of Professional Conduct 1.6(a) says: "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)."

    Did Nesson consult with Tenenbaum prior to disclosing these communications (communications that any lawyer I've ever encountered would consider highly confidential)? Did Tenenbaum consent to their disclosure? Would any attorney on earth (other than Nesson) have counseled his client to consent to such disclosure?

  3. This comment has been removed by a blog administrator.

  4. I can't argue with the entertainment value of these shenanigans, but would just like to remind you that (a) there are 39,999 other RIAA defendants, (b) there is nothing the slightest bit entertaining about any of their cases, (c) a number of their cases are pending, (d) some of the best litigators in the country are representing the defendants in those cases, (e) real and important undecided legal issues are at stake in those cases (See, e.g., reply memorandum of John Doe #3 filed yesterday in Arista v. Does 1-16), and (f) usually -- when faced with a real defense -- the RIAA lawyers, knowing they have no case, voluntarily dismiss (See, e.g. hasty retreat in UMG Recordings v. Lanzoni when faced with having to face veteran IP litigator Sid Leach.

    As to "fair use", I don't know what the folks you mentioned have to say about it, but I can tell you that there are "fair use" defenses to some of the p2p filesharing scenarios. Being a litigator rather than a scholar, however, I would not be able to discuss them with you until after they have found their way into publicly filed court documents

  5. Ray --

    I'm not sure which fair use arguments you're referring to, but as far as I'm aware, courts have consistently rejected the fair use defense in the p2p context. For example:

    Sony BMG v. Gonzalez:



  6. Ben, as I mentioned I can't discuss it. Please don't ask me to do exactly that for which you criticize Prof. Nesson.

    If you want to try to beat me up over the subject, knowing my hands are tied behind my back, so be it. But I would not consider that fair fighting. I have no problem with your discussing "fair use" until the sun comes up, but please don't address your arguments to someone who has told you he cannot respond.

    Allow me to remind you:

    (a) It is unlikely that you have the degree of familiarity I have with the myriad actual fact patterns, since I have been exposed to hundreds of these cases during the past 4 1/2 years, on a daily basis, including Saturdays, and Sundays, and

    (b) I was litigating the "fair use" defense, including litigating it in the SONY Betamax case, when you were -- if I calculate correctly -- in 7th grade or thereabouts.

  7. Ray, I am certainly not "ask[ing you] to do exactly that for which [I] criticize Prof. Nesson" -- that is, publishing internal communications with your expert witnesses. But you made a public assertion about fair use. I responded by citing cases. That's hardly "[un]fair fighting."

    And making cracks about my age is pretty weak. Nesson has been a tenured professor at Harvard since before I was born. And that proves...?

  8. In any event, I cannot discuss with you points which have not yet been made in litigation documents.

    As to "age", touche; it proves nothing. I guess what I was trying to say is that I think you treat me with insufficient respect.

    But I guess that's not something I can teach you.

  9. I htought now that there were real lawyers involved in this case, we weren't going to see this kind of disregard for the rules (and common sense).

  10. nothing secret about the recording i made of al warren way back then. i held the recorder to his mouth like a reporter holding a microphone.

    joel is not shamed by anything he did. we do not need any special rules of secrecy to cover either his behavior or our process of defending against the claims against him. the more people see and understand the process the plaintiffs impose on him the better to judge whether it is right and just.

  11. Of course Mr. Tenenbaum is not shamed by anything he did, and that is precisely the problem. After all, why pay for something when you get it for free?

  12. There may be nothing secret about that recording, Charley, but I can't find it anywhere online. Got a copy somewhere?

  13. Nesson has taken down all this material -- so the emails from Lessig and Fisher are no longer up at his blog, nor is the audio file where Nesson and his wife call a current Nesson student a "schmuck." Does anyone have an archived copy of the blog page as it was? And why did Billion Dollar Charlie take it down? One wonders if Harvard finally stepped in and did the intellectual equivalent of a breathalyzer?

  14. i took the post down in two steps, first the email exchange because one of my correspondents requested, see my sig. then fern requested that i take down her audio and her joke. she has now granted me permission to put them up again, which i will shortly do. i'll see if i can do it in a way that re-lights ben's link.


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