Friday, June 5, 2009

Tenenbaum team uploads songs for worldwide distribution; Nesson scolded by student; 'an oh shit moment'?

To the suprise of exactly no one, the Joel Tenenbaum case is heading deeper and deeper into bizarro-land.

Here's the latest: Tenenbaum's counsel, Harvard Law School professor Charles Nesson, has admitted that he and his team uploaded the seven songs that are the focus of this case to a public file-hosting service, accessible to anyone on earth with an Internet connection. Nesson himself posted a link to files, and the password that made them accessible, on his blog (see p. 25). When questioned by the plaintiffs about the uploads, Nesson apparently removed the link to the songs, but was told by his student and fellow Tenenbaum defender [REDACTED] that he couldn't take the songs down from MegaUpload (though the link now seems to be dead).

[REDACTED], the team's "designated naysayer," was not pleased: "Well, this made my day.... Charlie's posting to the wider world is a different issue, and I don't know how to deal with it.... The attorney-client waiver might end up killing us...." [REDACTED] had apparently thought he was posting the songs so that only Tenenbaum's legal team could access them, but Nesson posted them to the world. And [REDACTED] wasn't going to take the blame. In an email to Nesson, he wrote:
Yes, this is a fight we do not need. But I didn't do it. You need to be less blazé [sic] about the things that you post. Dammit.
Another of Tenenbaum's student defenders, Isaac Meister, was a bit more blunt:
I'd say this could be an 'oh shit' moment.
But this was all confidential internal discussion among counsel, clearly protected from disclosure by the attorney-client privilege, and never to see the light of day, right? Are you kidding? Not in Professor Nesson's land of "radical transparency"! Yes, Nesson voluntarily forwarded the incriminating emails, chock-full of admissions, to the plaintiffs' counsel.

It almost seems besides the point, but the labels have filed a motion to compel discovery responses related to Nesson's uploading and the series of events described above:
Plaintiffs have sought discovery regarding the posting of the Exhibit A recordings and the pro-piracy propaganda to Defendant’s counsel’s blog. This information is relevant to the central issue in this case – Defendant’s willful, continuous infringement of Plaintiffs’ copyrighted sound recordings. Indeed, Defendant’s counsel confirmed that “joel’s seven songs” were posted without authorization on Defendant’s counsel’s blog and distributed to the “wider world.” Id.; April 25, 2009 email from Charles Nesson to Eve Burton, Exhibit C. Further, the information sought regarding the brazen infringement of the Exhibit A recordings and the propiracy propaganda is reasonably calculated to elucidate key issues, including willfulness, continuing infringement, actual distribution (or substantial evidence thereof), and the defenses Defendant intends to assert, including fair use, “fairness,” and whether Defendant’s infringement is commercial in nature. Accordingly, discovery into these matters is directly relevant to Plaintiffs’ claims, as well as Defendant’s intended defenses.
I suppose this case could get more bizarre. But I have no idea how.


  1. This is a desperate and vain attempt to legitimize his ludicrous arguments about freedom of digital information by sacrificing himself on the industry's litigation altar. Nesson's williness to use the court system to suit his own ego and personal agenda seems particularly hypocritical given his constant deriding characterizations of the industry's litigation tactics.

    If he was so certain of his position, then he would simply announce that he was copying and distributing plaintiff's music (a selection of songs not at issue in the current case) from his home computer and wait for the summons in the mail. But here, he's obviously trying to wrap his fledgling case in cloaks of attorney-client relations, education, and free expression and goad the music industry into a fight on what he feels is his own turf. This guy's ego is simply out of control, probably bordering on reckless, and when Tenenbaum loses because of his antics, I hope that the malpractice money can go to satisfy the judgment.

  2. Dear Chris,

    You have a wonderful blog! You may appreciate the Open Letter (about intellectual property and copyright protection) I wrote in May 2009, & posted to my website, (on the page called "Upcoming CD"). I took a rather extreme stance, but I've been rewarded by connecting with so many who are working towards what I am -- respect for artists' rights.

    Warm regards, from


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