Building the Public Domain, Part I

Charles R. Nesson ’60, the self-styled “Dean of Cyberspace,” makes news and stirs controversy with his unconventional tactics in the fight against the RIAA

Unnamed photo
Courtesy of D Yvette wohn

1Uncaptioned photo

Part II can be found here.

: make a CD : make a mix : love the rebel in the music : believe in the miracle - BAM - A fuckin’ bullet rips off part of your head :
–Charles Nesson’s Twitter, Feb 13th, 5:04 AM

The deposition of Joel Tenenbaum, alleged file-downloader, alleged file-sharer, took place at 9:15 on a Wednesday morning late last September, in the skyscraper-bound Boston law offices of the commercial law firm Robinson and Cole. Just steps away, in a small Starbucks coffee shop situated right off the windswept brick pavement of Government Center square, the notoriously quirky Harvard Law professor Charles R. Nesson ’60, still in his first week representing Tenenbaum, prepped his young client in the moments before the encounter.

The small strategy session was well-warranted. In the array of “discovery” tools available to civil litigators for building a case pre-trial, deposition is one of the most powerful—an opportunity for one side’s lawyers to conduct a virtual interrogation of potential witnesses, often at their own law offices, with a court reporter present to transcribe. Put under oath and given very few grounds for objection, the deposed party has no recourse for evasion. Add to this the fact that depositions often last for hours and even days, and you get a process that is fatiguing at best, and overwhelmingly invasive at worst. But neither Tenenbaum nor his newly retained lawyer had any intention of trying to make the proceedings move quickly. “The judges are the kings, the lawyers are the wizards, and you’re the warrior,” Tenenbaum recalls Nesson saying that morning. “You have an ox that they’re trying to get, and you’re trying to keep them from getting your ox.”

Tenenbaum took the advice seriously. With Nesson’s approval, the 25-year-old Boston University physics student showed up for the deposition clad in a Red Sox t-shirt—a dig at his assailants, Denver-based lawyers, whose hometown team, Major League Baseball’s Colorado Rockies, had been swept by the Sox in the 2007 World Series. A pair of sunglasses—a warrior’s armor—hid his eyes during the proceedings.

Tenenbaum is not shy about using military metaphors when describing his legal struggles. Nesson is a “shield,” litigation tactics are “guns,” opponents’ complaints are “arrows.” And in fact the scene that played out around him during the deposition was, for all intents and purposes, an ideological war. For the duration of one September day, Suite 2500 in the One Boston Place skyscraper housed a struggle between two narratives about the American legal system’s adaptation to a world transformed by the powerful technologies of the last decade. On one side was the free-thinking professor, the king of the copyright-left, the self-avowed champion of openness and liberation, of an unfettered Internet and all its trappings. On the other were the corporate professionals from the Recording Industry Association of America—the Institution, the upholders of regulation and federal conservatism. Nesson, armed with a digital voice recorder and a camera, had no intention of letting his story go overlooked “[I] am sitting twitt[er]ing at the legal deposition of a digital native who is having his digital universe bared to exploration by the RIAA,” he blogged.

Conducting the questioning for the plaintiffs was Eve Goldstein Burton, a young University of Virginia J.D., pregnant at the time of questioning (“lady tiger pregnant with twins examining joel” reads one of Nesson’s digital updates from the deposition.) The 270-page transcript from that day, documenting what turned into a nine-hour marathon, is peppered with oddities: Nesson offering his encouragement (“Be proud”) while Tenenbaum fields a question about whether he downloaded pornography; Tenenbaum, in a fit of philosophical whimsy, informing the plaintiffs that he was sure of something only “to the extent that anyone can know anything about what they did while they were conscious”; Burton, requesting that Joel pick files he did not download from a 40-page printout of his share folder and receiving a listing of several off-color adult-film selections in response. Lawyerly disdain, often smothered by the formalism and conventions of the profession, went barely veiled.

“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.”

“Yeah, that’s what does it alright,” Nesson replied, coolly, keeping his voice recorder on.

from my side the path is straight: the copyright giant does not care whether bits are books or music: its goal is control: close the net
–Charles Nesson’s Twitter, April 4, 4:38 AM

The online copyright debate, at its most fundamental level, breaks down to a disagreement between the “copyleft’ (those in favor of free distribution and download of digital material on the Internet) and the copy-conservatives (those who claim that such practices are disastrous for artists, industry, and by extension the economy as a whole.) For a generation full of Joel Tenenbaums, weaned on technology and proficient on the net, there’s more riding on this debate than ever before. “Back in the 80s if you made a mix cassette tape for your friends, that was probably illegal, but the record companies were never going to sue you in a million years because it was low level, it was totally under the radar, and they just sort of considered it a cost of doing business,” says Benjamin S. Sheffner ’93, the copy-conservative lawyer behind the popular copyright blog “Copyrights and Campaigns.” “The Internet completely changed the game—all of a sudden the teenager who used to be making a mix-tape for his friend can make millions of perfect copies and send them all over the world.”

If there is a voice asking to be heard on the copy-conservative side right now, it’s that of Sheffner, who has worked on copyright issues with broadcast giants NBC and Fox, and recently served as a special counsel to the 2008 campaign of Republican presidential candidate John McCain. With a little time on his hands following the November election, Sheffner, who had some journalism experience on Capitol Hill prior to law school, turned to blogging about copyright issues—a sector where, he said, there was a need for a more conservative viewpoint. “When you go on the Internet and you want to read about copyright issues, ninety-nine percent of what you read is ‘the RIAA is evil,’ ‘the record companies are evil,’ ‘copyright law has take over, and it’s unreasonable,’” he said. “And I’ve felt for a long time…that copyright owners are too reluctant to engage in the debate especially where the debate—and I use the word ‘debate’ in quotes—takes place, which is largely on the Internet these days.”

The complicating issue, Sheffner said, is one of professional liability. “If you work at a big law firm and you start debating people in the comments section in the corner of some blog, whether you like it or not, people are going to attribute your views to your company or your law firm or your client,” he said. “So people who believe strongly in copyright and make a living doing so might be most knowledgeable, but they’re less able to speak publicly.

By contrast, Nesson, the self-styled “Dean of Cyberspace,” with his own blog and Twitter updates, appears in multiple YouTube videos, plays Internet poker regularly, and has taught classes online using the virtual reality site SecondLife, makes no secret of his online footprint or his copyleft orientation. It was this mischievous-looking 70-year-old law professor who served a decade ago as the motive force behind the founding of Harvard’s Berkman Center for Internet and Society—an organization that grapples with the developing legal issues surrounding the use of the Internet and has been dubbed “a den of copyleft activists” by copy-conservatives.

Two years ago, when the RIAA asked Harvard to join other universities in a cooperative effort to track down file-sharers using on-campus networks, Nesson received attention for co-signing a letter with a Berkman colleague decrying the perceived attempt at encroachment on internet usage and publicly telling the RIAA to “take a hike.” Even earlier, in the fall of 2003, when the RIAA announced that they would start suing hundreds of individual file-sharers for their activities, Nesson began thinking about representing a Harvard student, but was unable to find one affected by the industry’s campaigns. In this sense, Joel Tenenbaum, a student, sued by five major record labels for downloading seven songs and sharing several others while he was still in high school, was a windfall. Here was a chance to take action against an industry that, to Nesson’s mind, is advocating the repression of a fundamental freedom to access and trade information on an open Internet, and doing it in a bullish way. The professor had never seemed so excited as he did in the hours after the Tenenbaum deposition, says Isaac Meister ’09-’10, a thin, bespectacled undergraduate who serves on the team of students who are working with Nesson on the case. “You can tell how interested he is by the narrative he builds up around it in his head…It starts out with a big story,” Meister says. “And for him this had the quality of being a very big story.”

To hear Nesson tell it, the story isn’t in the little rules, the details: the seven songs downloaded, the hundreds shared, or the money and damages demanded by the recording companies. It’s one of resistance in the face of repression by constricting federal authorities. It’s about the Internet as a vast frontier, a sea of knowledge and openness whose limitless utility runs the risk of being hamstrung by interference and regulation. Most fundamentally, it’s about freedom—springing the interests of the individual from authoritarian influence, allowing the enjoyment of benefits without arbitrary hindrance, forcing the conservative interests to let go. “The way it feels to me is that our society at this point is way too tight,” Nesson says. “We’re just clutched up in a number of ways…We’re not willing to be real. And the reason we’re not real is that somehow we’re afraid that some people will disapprove of us for being real.”

The corresponding struggle—as much ideological as it is practical—is not a new one for Nesson, and the Joel Tenenbaum case is hardly the only front on which he believes it needs to be fought. Nesson (who famously told Harvard Law’s student newspaper in 2002 that he had experimented with LSD and cocaine and still often smoked joints on his morning walks) has been working for years on causes—the legalization of marijuana among them—that he sees as important roadmarkers on the path to reliable personal freedoms. In his eyes, there’s a common thread between the illegality of many of his pet causes: on-line poker, recording one’s conversations, blogging personal e-mails, downloading and file-sharing, and marijuana. “There is a very close relationship with the exercise of authority to force kids not to click on the net, and the exercise of the authority to keep them from smoking marijuana,” Nesson tells me in his office, drawing a couple of the threads together. “They both are articulations of an authoritarian state in which the law is being used by the people who’ve figured out how to use influence within the state against the interests of an unrepresented public. There’s nobody to defend the public domain.”

But Nesson’s ideology is a formulation, copy-conservatives suggest, engineered to crowd out their side of the story. “They want to create this narrative—it’s a classic David and Goliath narrative, this one kid fighting against these gigantic corporations and being crushed,” says Sheffner. “But the reality is it’s a lot more complicated.” In September, 2003, the RIAA announced that it would begin the first wave of what eventually became an (occasionally unsightly) onslaught of some 35,000 lawsuits against users caught illegally sharing files—a number that included, the Wall Street Journal later reported, “several single mothers, a dead person and a 13-year-old girl.” But the movement was not conceived in a vacuum, coming amidst a hail of lost profits—14 percent in the space of four years—that the industry said coincided with an uptick in the purchase of blank CDs and the use of peer-to-peer sharing networks.

It’s losses like these that drive proponents of the recording industry to paint Nesson as a head-in-the-clouds academic, advocating for a pet cause while showing little respect for the victims—artists and workers alike—of the economic havoc it might create. “Mr. Tenenbaum’s counsel may be using this case to further a crusade to gut the copyright laws that protect creators,” RIAA spokesperson Cara Duckworth wrote to me in a recent e-mail. “[But] for a music community severely harmed by illegal music-downloading, including thousands of working class folks out of jobs, this is no academic exercise.”

the world attempting to make sense of my actions finds the difficulty too great and so conjectures that i am erratic and crazy
–Charles Nesson’s Twitter, April 4, 4:32 AM

Even in the academic community, where copy-conservative litigators seem convinced he belongs, Nesson’s image doesn’t stand still. It is, rather, a continuous tug-of-war between sheer brilliance and a series of lesser qualities—childish compulsion, utter laxity, idealistic extremism—that shimmer on and off, sometimes apparently part and parcel with the brilliance, sometimes apparently harmful to it. Nesson is either the most intelligent man in the room, or he is the most insane, it often seems. Sometimes he is probably both.

The hairpin shifts, from lout to genius, are not a recent development. Arriving in Cambridge in the late 1950s from Phillips Exeter Academy, the elite New England boarding school that was, all-male at the time, the young mathematics student was drawn far more to Boston’s many social attractions than to academic pursuits. “I figured that there were some 25 women’s schools within radius of Cambridge,” he says, “and I was thrilled to be here.” Some of the thrill wore off when Nesson applied for early admittance to Harvard Law prior to his senior year at the College. He was rejected—a disappointment punctuated when he went to confront longtime Dean of Admissions Louis Toepfer over the result.

“I said, ‘How come I didn’t get in?’” Nesson recalls. “He said, ‘Well, you’ve got good board scores but lousy grades­­. That means you’re smart but, you’re lazy. We don’t want you. Go to Yale.’” Instead, Nesson improved his grades, and he was admitted the following year.

His presence at the Law School didn’t long go unnoticed. Nesson rose quickly to the top of his class and stayed there, graduating with the prestigious Fay Diploma, awarded each year to the third-year law student with the highest cumulative grade point average. In the notorious pressure cooker that is Harvard Law, word traveled quickly about his academic achievements, but Nesson hardly seemed to be straining. “He seemed to be a very nice guy, very amiable, not the catatonic types that you often find at Harvard law school,” recalls classmate Thomas J. Malmud, now a practicing lawyer in New York, who had a passing acquaintance with Nesson while the two were in school. “He seemed very relaxed, which also distinguished him from most of us.”

Even today, Nesson rarely dresses up much for work, and ties don’t appear to be a consistent part of his repertoire. Black turtlenecks, black Berkman Center fleeces, black bubble vests—all fairly casual—tend to dominate his on-campus wardrobe. At his first meeting with his new lawyer, Joel recalls, he found Nesson sitting in his office clad in a T-shirt that read “Gay?...Fine By Me”—part of a Law School campaign to encourage openness.

It’s a casual attitude that is on full display in the classroom, where he has been known to keep his e-mail open on the projector screen during class and ask students to grade their own classmates’ papers. At a recent meeting of one of his spring “American Jury” classes, Nesson sat in the audience watching as a group of his students showed a clip from the popular reality show “Survivor” and then conducted a mock trial based on the show’s “tribal council” rules while candy-incentives circulated for those participating. The marijuana laws seemed to be something of a running joke with the students—two mentioned them over the course of the unrelated simulation, perhaps playing to Nesson, who looked up from his computer screen each time and raised his hands in mock horror, crying “No, no, say it isn’t so.”

Exams, traditionally the primary pressure point of a Law student’s term, are more of the same. Nesson’s final for his winter-term “Evidence” class consisted of two digital audio files, and a single question: “Of what is this evidence?” The first of the two recordings is particularly bizarre—an eery mash-up; distorted snatches of speech echoing over hollow instrumentals below. Of what is this evidence? Nesson posts the answers to his blog. Many are highly cryptic, even incomprehensible. Some include mash-ups of their own. Some are poems: “Of What is This Evidence?/Ought we, living underground, dare/To ask such questions of the Universe?/To search for the space that lies between?” It’s a style of speech, of stream-of-thought association—they might have called it “rapping” a few decades ago—to which Nesson himself is no stranger. Take this bit, posted to his blog after Olympic champion Michael Phelps was caught smoking marijuana at a party in South Carolina: “how humbling/they make our champion apologize/to whom/for what/apologize for doing something you want to do/that you know isn’t wrong/so that your corporate endorsers won’t be upset.” Such a free-wheeling attitude doesn’t always go over well with students: “Is there a method to the madness?”one student reporter asks in a 2002 “Law Record” column. “Plenty of Nesson’s past and present students insistently say no. Nesson, they say, is ‘selfish’ or ‘lazy’ or ‘whacked,’ just ‘an old man bored with his job.’”

On the legal side, similar reactions have followed several of Nesson’s antics—a stable that includes posting internal legal documents and e-mails online for comment and revision, continually seeking to record his interactions with opposing counsel, and seeking to publicly depose the opposing side’s lawyer (a rarity in its own right) in the Ames Courtroom on the Harvard Law campus, so that an audience could attend. It’s not easy, perhaps, for the uninitiated to sort out the strangeness of these measures, but in the legal world, a profession where day-to-day business is typically conducted out of the spotlight, in closed meetings held high in lobbied skyscrapers; where procedural minutiae are the one and only way, and the will of the judge is to be revered and respected, such activities are seen as highly iconoclastic, and even destructive. On the blogosphere, the quirky moves are dynamic fodder, taking on their own classification—“Nessonalia” or “Nessianic influences,” they have been called. Even to the students who work for and admire him, some of Nesson’s schemes have seemed extremely strange. “There are not any of us that don’t ever feel uncomfortable,” says Matthew C. Sanchez, a third-year student who drafts most of the legal documents for the Tenenbaum team. “There’s always some uneasiness about treading new ground, because you think, ‘I might be doing something wrong.’ Lawyers as a tradition are very rule-bound.”

Sheffner, the copy-conservative blogger, puts it differently: “Everything in this case has been abnormal and weird.” It’s a fact that may have cost the Tenenbaum team on more than one occasion. It also may be the team’s best chance of succes. With several hurdles left to clear before a trial date can be set, those following the case will have to wait and see.

—Staff writer Christian B. Flow can be reached at cflow@fas.harvard.edu.

Part II can be found here.

Multimedia

Unnamed photo

Unnamed photo