Building the Public Domain, Part II

(Part I of this story appeared in the print edition of Fifteen Minutes magazine May 8, 2009.)

does one have the right against the state to record one’s life
–Charles Nesson’s Twitter, March 2, 10:41 AM

Early this year, Massachusetts District Judge Nancy Gertner phoned into a conference call between Harvard Law School professor Charles R. Nesson ’60 and three attorneys from the recording industry. Her intention was to discuss the progress of a case that Nesson had agreed to take on just six months previous—a case centering on Joel Tenenbaum, a 25 year old Boston University physics student being sued by five major record labels for illegally downloading and sharing music online.

Nesson was participating from his office. The Tenenbaum team—a group of law students who have been helping him with the case—were with him. His voice recorder was on.

The audio of the interchange that followed is still available online. “Who am I speaking to?” Gertner asks. Introductions follow from Nesson and the opposing attorneys.

Clearly ready to begin the proceedings, the judge then makes a seemingly off-handed remark: “This is an informal conference. I hope that nobody is recording this, am I right?”

In fact, the question was a telling one. Nesson carries around a digital recorder with him at all times. His blog boasts a taped discussion with a policeman in which the professor offers details on a domestic altercation with his wife, Fern. (There’s also an apology to Fern for “revealing”—that is, posting online—an unrelated conversation between the pair of them, which he taped without her consent.) In short, Nesson has something of a track-record for causing trouble with unauthorized recordings. In the fall of 2001, he drew fire after he posted online a heated e-mail correspondence between two colleagues. When one of the men, Law School professor Alvin C. Warren, came to Nesson’s office to confront him about the incident, Nesson took audio. It found its way online.

Recording had already become an issue in the Tenenbaum case by the time Gertner made her status call. After watching Nesson take audio of his client’s deposition, the recording industry’s lawyers told him in November that they would not consent to being recorded in any of the mandatory meet-and-confer session that occur periodically in cases between counsel from the opposing sides. After protesting that he needed the recordings as a teaching tool, Nesson said he would refuse to participate in any more of the meetings. The Court was not pleased.

“Uh, no you’re not right, your honor,” Nesson replies. “There’s a recorder going in my office, and I have approximately 20 students in my room.”

“Your students can be present, but I don’t want a recording,” says Gertner. “Your students can listen, but it should not be recorded.”

A long pause follows, before Nesson’s reply: “I feel bad about that, I truly do, because in some sense this is all about the [Inter]net being present in the court and being able to litigate a case in a way that it is open.”

Nesson accedes soon after, and the recording ends, but it’s less certain that the incident, and those that preceded it, will be so quickly closed. At the very least, Nesson’s somewhat loose take on procedural rules has raised questions about how well the professor’s academic penchant for idealism has weathered the transition from the classroom to the more rules-based climate of civil litigation, and—more particularly—whether his fascination with openness is coming at the expense of Tenenbaum, his client. “Number one rule of litigation: don’t piss of the judge,” copyright blogger Ben Sheffner told me, reflecting on the incident. “He’s poking his finger in her eye, that does not serve his client well.”

The observation again raises a question that’s not uncommon among those who’ve dealt with Nesson: Is he brash, disrespectful, and out of his mind? Or is he simply five steps ahead of everybody else? For Nesson and his team, the Tenenbaum case has never been solely about file-sharing charges. It’s about defending open access, to the internet and to the judicial process. Making a recording of a meeting with a judge available online speaks to that agenda. And that, Nesson believes, is worth ruffling some feathers.

Tenenbaum, the person who stands to lose thousands of dollars in damages if Nesson’s designs implode, seems to accept it all in stride. Sued in 2007, he fought his case for a year with the help of only his mother, a small-time family lawyer with little knowledge of civil procedure. The experience was, he says, emotionally and physically destructive, filled with rough treatment and strident demands by the corporate lawyers arrayed against him. When a Massachusetts District Judge contacted Nesson to see if he would take on Joel’s case, it was a relief—a promise of protection arriving in a Harvard Law School envelope.

“I’m not anyone special,” Tenenbaum says, reflecting on the case one afternoon, across the table at Espresso Royale, a popular coffee spot on the Boston University campus. Tenenbaum is fairly uninvolved with the workings of the case these days. But in the spirit of the openness that has come to characterize the defense, he feels compelled to be open to media queries. “The whole point is that I’m just one person among 40,000 who’s in the same circumstances,” he says, referencing the other individuals who were sued by record labels during the recording industry’s recently-halted five-year legal campaign against individual file-sharers. “My role in the case is not just a matter of consequences to me.”

It’s hard to escape the impression that Tenenbaum rather likes where he’s at. Short, and solidly built, clad in a black leather jacket, with an arm in a sling from a snowboarding accident, he ticks off for me the media outlets that the Tenenbaum team has reached: pretty much everything but the New York Times, it seems, much to his wry chagrin. At this point, Joel has participated in public panel discussions about his case. He’s had the opportunity to engage in meandering philosophical conversations with one of the nation’s foremost legal minds (“What do you think it means to know something?” he asked Nesson during a break in the action at one of the legal proceedings), he’s appeared in professional photo shoots with the team of Harvard Law hot-shots undertaking his defense—always in the center. At one photo shoot, the team blared five of the songs Joel is accused of illegally downloading—Outkast’s “Wheels of Steel,” Nirvana’s “Come as You Are,” Incubus’ “Pardon Me,” and “Newskin,” Greenday’s “Minority.” Sitting in the café, he looks for a larger significance in the song-titles: “Greenday ‘Minority’ that’s the ultimate irony, right? About being un-conventional and against-the-grain?”

All of it is a far cry, in terms of glamour, from fighting a case with only his mother beside him. Nesson’s oddities are no secret to Tenenbaum, but he doesn’t appear to be worried. “I called him up and said, ‘What’s all this, you’re not following procedures and is that something I should be worried about or is this them just making a big stink?’” Tenenbaum recalls. “He says, ‘Don’t worry about it, this is par for the course.’ When it comes down to it, I know that he has a very firm grasp of the big picture and how to execute that.”

And yet copyright blogger Sheffner’s warning about angering judges has appeared at times to be on the mark. In one March ruling, on a motion filed by the Tenenbaum team that was found lacking on several procedural points amidst, the Judge had a strong message for Nesson. “Nothing entitles the Defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the Local Rules of this Court, or to dispense with them where they fail to suit his counsel’s teaching style,” Gertner wrote. “….While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation—a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules.”

is it crazy to advance this argument to an american jury in a kid’s defense against being crushed by the copyright giant for seven clicks?
–Charles Nesson’s Twitter Apr. 4 4:57 AM

The support team that handles much of the day-to-day business of the Tenenbaum case meets weekly in Nesson’s fifth-floor office in Griswold Hall, nestled just behind the Law School’s formidable Langdell library. There’s five of them officially, drawing spring course credit for the 10 to 15 hours a week they are expected to devote to the “RIAA clinical.” But the retinue that composes team Tenenbaum is a bit bigger than that, extending to include the undergraduate Meister, a couple of interested first-years not yet eligible for clinical credit, and even, ostensibly, Nesson’s wife Fern.

At least a few of Nesson’s students have been central to his involvement with Tenenbaum since the beginning, this fall, when he brought Joel to a meeting of his “CyberOne: Law in the Court of Public Opinion” class to discuss whether he should take on the case. When he did decide to represent Tenenbaum, some of the casework became part of the CyberOne curriculum. There have been additions to the team since then, part of the regular turnover from term to term, and much attrition (two of the students most heavily involved in the case at the outset refused comment for this article.) But the most critically involved team members are veterans of CyberOne. Early in the spring, while the new sign-ons to the clinical are still getting the lay of the land, they stick out quite clearly.

There’s Matt Sanchez, the document writer—a broad-shouldered, head-shaved, third-year from Florida who attended journalism school as an undergraduate, still occasionally free-lances for the guitar periodical “Bass Player,” and has taken the lead on many of the legal aspects of the Tenenbaum case. Debbie Rosenbaum, a joint degree candidate at the Business School and the Law School, handles the public relations for the team—a job that she is said to have won after challenging the expertise of a professional PR consultant that Nesson invited to CyberOne in the fall. Isaac Meister ’09-’10, still a junior at Harvard College, has served as Nesson’s personal assistant since last February, after being plucked from a technology support role at the Berkman Center. As the team’s administrative guru, Meister has made it his business to memorize the dates, document classifications and multi-digit docket numbers associated with the case. For logistical questions, detail questions, questions about the nitty-gritty, day-to-day progression of the case since September, Isaac, who has been at Nesson’s side while others were on break and exams, is the man.

While he celebrates participation and even dissension, Nesson is the guiding force at clinical meetings, seated at his large, elbowed desk, arms often clasped behind his head. The team’s legal argument has never lacked for novelty. When he initially took the Tenenbaum case, Nesson made it clear that he would launch a constitutional attack on the so-called “Digital Theft Deterrence Act,” which mandates damages of up to $150,000 for willful copyright infractions. Such a scale for damages was disproportionate to any harm committed, the team suggested, putting it in violation of the constitutional provision against “cruel and unusual” punishment and potentially “slamming the courthouse door” on those too cowed by the financial burden to consider risking further expenses by fighting the case. Of further concern was the possibility that the recording industry was attempting to use its lawsuits to send a message to potential file downloaders and not just to redress its damages, giving its lawsuits an extra objective not allowed by the rules of civil procedure. The strategy—a challenge to the very constitutionality of the laws behind the recording industry’s case rather than a plea of innocence or a simple settlement out of court—was a fresh one.

More innovation followed soon after, when Nesson decided that, in the interests of open access, the proceedings of the Tenenbaum case should be available online. “[In] the original constitution, the idea of a public trial was that anybody from the village could come and see the trial,” Nesson tells me. “So now, all of a sudden, we find ourselves in an internet world where the technology permits everyone in the village to come to the trial again...Law needs to be aware of that.” In late December, he filed to allow Internet coverage of a courtroom hearing in the Tenenbaum case.

The Massachusetts District Judge was receptive to his argument, granting the request in a move that would have allowed the state’s first-ever live Internet coverage of a federal court hearing. But the recording industry appealed to a higher court two days later, putting a hold on the broadcast and winning no friends on the Tenenbaum side, which saw what came to be known as the “First Circuit Appeal” as yet another move by powerful interests to restrict access to information online. “At a very basic level, this is about the privatization of the Internet,” one of Nesson’s students tells me while working on the appeal. “It’s about the use of the legal process to close down the internet and you don’t want to get all fluffy and ‘ra ra democracy,’ but the fact of the matter is that every time a private interest wins a case that does more to privatize, we’re this much closer to being fucked as a society.”

By mid-April, the First Circuit Appeal is over—a loss for the Tenenbaum team—and there’s an even greater sense of urgency in the air. The case would have to proceed, it appeared, without the “village” full of Web viewers. Nesson, who had made what one judge called a “powerful, eloquent” argument in support of the Web cast just a few weeks earlier, had predicted the opposite outcome, making the result all the more jarring. “The troops are disheartened,” Meister tells me before one of the team’s Thursday meetings.

But far from backing down, Nesson was already incubating a new assault on convention. The First Circuit decision against Web-casting came on April 16. Just a couple of weeks earlier, the professor had made waves in the legal community when he posted an e-mail chain to his blog suggesting an idea for a new, radical defense. Perhaps individuals like Tenenbaum, downloading music for free on-line several years ago when there weren’t any suitable for-pay options such as iTunes, weren’t committing a copyright infraction. Perhaps, Nesson now surmised, such activity wasn’t illegal at all, falling under the umbrella of what is known to the legal community as “fair use.”

When I visited the Tenenbaum team in late April, the notion wasn’t going over well. In private e-mails later posted to Nesson’s blog, some of the nation’s top copyleft academics—the very people who Nesson had intended to recruit as expert witnesses for his side—had decried the idea. Fair use is typically assessed based on a four-factor test that includes such questions as how much of a particular published material is being copied and what effect the copying might have on the material’s value. Teachers re-producing a few paragraphs of a book for use in the classroom qualifies as “fair use.” Participation in a peer-to-peer file-sharing network, where songs are made available for download by thousands of people, traditionally does not. And, according to Nesson’s colleagues, it was nearly unthinkable that such a precedent would be changed. “I’m worried by your statement that “our case is fair use,” wrote Harvard Law professor Terry Fisher, who had been slated as a witness for the Tenenbaum side. “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.”

But Nesson forged ahead, more boldly still. A week after the First Circuit ruled “no” on the Webcast, there’s talk of an appeal to the Supreme Court on the issue. At the April team meeting I attend, Nesson proposes suing the judges on the panel, counting them as complicit in an abuse of legal process for their erroneous ruling. The office, filled with chairs and laptops, erupts. Four letter words fly. The volume rises. Ray Bilderbeck, the clinical’s notorious dissenter, puts his head back and laughs flat out. “They’re going to say ‘fuck you no were not going to re-hear,’” Meister says. “’Fuck you, fuck you. It’s not going to go well for you, fuck you.’”

The notion of the fair use defense, when raised, also meets resistance.

“I don’t even know what you mean when you say ‘fairness,’” Bilderbeck insists, seated in a chair opposite Nesson’s desk and bristling at his professor’s apparent disregard for the four factors of the fair use canon. “I don’t know what ‘fair’ is…It seems like you want me to read your mind, and it’s not happening.”

“I want you to read the jury’s mind,” Nesson replies.

judges say what the law is, but the law is not what the judges say it is. the law is above them, as it is above me. i answer to it, as they
–Charles Nesson’s Twitter, April 24 12:57 PM

In September 2007, two men lit up a marijuana cigarette behind a booth in Boston Commons. The activity was hardly unique to the occasion: the 18th annual Boston Freedom Rally was, like its 17 predecessors, a joint concert-and-protest event aimed at boosting the campaign to legalize marijuana. Nor was the action entirely spontaneous: the two men were Keith Stroup and Richard Cusick, they were, respectively, the founder of the National Organization for the Reform of Marijuana Laws (NORML) and the publisher of High Times Magazine, and they intended to make a statement. Taken into custody by an officer at the rally, the two men were respectful and well-behaved—quiet for the time being. The real statement would come some months later, in May, when they strode into Boston’s Edward W. Brooke courthouse with a team of lawyers ready to fight the charges. Among them was Charles Nesson.

In Stroup’s retelling of the events that followed, posted online to the NORML Web site, the officer who had arrested the pair failed to show up for the proceedings, prompting the judge to move to dismiss the case entirely. Nesson would have none of it. “Your honor my client[s]…have spent their entire lives fighting these laws, and they have a right to have these charges heard by a jury of their peers, and they very much wish to exercise this right,” said Nesson, according to Stroup’s account. And with that, Stroup notes, “the pending dismissal was avoided, based on the objection of the defendants, not the prosecution. That must be somewhat unique in the annals of Massachusetts judicial history.”

The tactic was about more than just making a scene. What Stroup and Cusick had been doing behind the NORML/High Times booth was illegal: this was hardly in doubt. But by demanding a trial, Nesson and his clients were hoping to make a start on changing that—tapping the power of a little-used legal prerogative known as “jury nullification.” In old English common law, if a jury felt that a particular law was destructive to liberty, it could refuse to render a guilty verdict on the basis of that law—the effect being to side-step the question of whether a particular action is illegal by indicting the law itself. Nullification is a rare occurrence in the American judicial system, and in fact jurors are not allowed to be told that they have the capacity to nullify, precisely because it is such a powerful tool. A refusal of a legal mandate, even by a local jury, is a bold step towards overturning it. In the case of the marijuana laws, that is precisely what Nesson desired.

The primary memorandum submitted in support of the marijuana case, complete with a high-minded quotation from Thomas Jefferson, reads as a glowing testament to the power of the jury. It is the “ultimate check,” a protector of “liberty,” a “bulwark” against slavish adherence to the letter of the law. It is, in short, precisely what is needed for the success of someone like Nesson, a man who advocates for causes that hinge on breaking the laws as they currently stand. A belief in the power of the jury is what makes it worthwhile for Nesson to remind his students, in the midst of the skepticism over fair use, that it’s the jury’s mind they need to read—not the judges, not his colleagues’, not his own. It’s also one of the motivating forces behind the public relations machine that the Tenenbaum team has built: the students maintain a Twitter feed, a blog, and a Web site, make YouTube videos and press releases, and stage events (Joel’s mother recently gave a harp recital in Harvard Square.) Win the collective will of the people, the idea seems to be, and one day, with enough persuasion, a people’s jury will condone breaking the rules. “We want to get to the jury on that issue,” Nesson tells his students when they hesitate on fair use. “Because once you get to the jury all sorts of things can happen.”

Of course, not all jury outcomes are necessarily favorable. If the Tenenbaum case goes to trial, it will be the second of its kind. The only other case from the recording industry’s five-year litigation campaign to reach a jury was that of a Minnesota woman named Jammie Thomas, who was sentenced in 2007 to pay $220,000 to the record companies for her file-sharing activities. A juror went on record after that trial calling Thomas a “liar.” (Thankfully for Thomas, a judge later threw out the trial verdict, invalidating the proceedings.) Things went something better for Cusick and Stroup, the marijuana crusaders, who were convicted by a jury in less than 30 minutes, but sentenced only to a single day in prison, which they had already served on the date of their arrest.

recursion building the public domain being the public domain having fun enjoying life turning seventy eating chicken soup doesnt hurt
- Charles Nesson’s Twitter, Feb 3, 7:46 AM

Even at 70, Charles Nesson—“Charlie” his students call him, could hardly be called old. Aside from a head of white hair, combed back off a high forehead, Nesson shows few signs of his age. He has his scooter that he drives to work, his iPod, his online virtual-reality avatar “Eon.” He plays online Poker and listens to Radiohead. He talks about Bob Marley. The professor’s words come slowly, but they are razor sharp, and they have the weight of consideration on them. “Something you need to remember about Charlie is that he says everything, no matter what it is, as if it’s the most interesting things you’re going to hear all day,” Meister says. “He takes everything very seriously even if it seems like he isn’t.”

And it’s true. In an interview early this year in his office, Nesson moves quickly, from his childhood, to his relationship with the Internet and computers (in the 1980s, fiddling around with an early personal computer, he fashioned a virtual poker program that he was later able to sell for enough money to buy himself a summer home.) For nearly 45 minutes, he discusses Jamaica—a country that he became fascinated with after visiting for the first time in the 1990s. They’re answers he’s given several times, but there’s a freshness to them, a certain off-the-cuff kind of contemplation. He raises his voice when he makes certain points.

Eventually, he makes his way to cyber law. There’s two branches, he says. “One half is all the law that’s generated by all the courts that deal with all the lawyers that have run into the courts to try and stop the future,” he says. But for Nesson, the future is something to be invited. "There’s another side, completely different and forward-looking, which is not how do you stop [the future], but how do you reshape it in order to thrive….That’s clearly where I’m at and its clearly a form of legal practice and legal academic thought that is different from the traditional just-go-to lawyers-file-the-papers-kind-of-thing, and I’m sure will be tut-tutted by some people but I think its force is undeniable and its necessity is clear.”

As long as there’s that necessity, his students say, Nesson will go forward. With a potential Supreme Court appeal on the table, a trial still in the offing, and—perhaps most importantly—an open Internet, a public domain to defend, the future will not wait.

“If Charlie agreed to be in it on this guy’s behalf, he’s going to be in it to the end,” Meister says. “And he’s never shied away from taking it whatever direction it needed to be taken in.”

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