You are viewing a read-only archive of the Blogs.Harvard network. Learn more.

Monthly Archive for November, 2008

possession, custody or control

From: Charles Nesson
Date: Fri, Nov 21, 2008 at 11:41 AM
To: Timothy M Reynolds
Cc: Eve Burton , Joel Tenenbaum, Arthur & Judie Tenenbaum, CyberOne RIAA

hello tim
no, this is not an important issue. this is an issue of immense triviality such as to make a mockery of you in denver and me in cambridge spending our friday morning sending email back and forth to each other about it. there are truly important issues at stake in this litigation but this is not one of them.

From: Timothy M Reynolds
Date: Fri, Nov 21, 2008 at 11:34 AM
To: nesson
Cc: Eve Burton

Hello Charlie:
Eve forwarded your email to me.  I don’t wish to belabor this, but we want to be sure of the status of things so that we can make a decision on whether to move to compel.  The testimony thus far has been clear that Joel created and maintained in his music collection a number of homemade music CDs, and that he left some of his collection at 20 Upton Avenue.  I am concerned about the narrow scope of Ms. Tenenbaum’s response below (ie., “no CDs in our house”).  Please advise as to whether Mr. or Mrs. Tenenbaum have any homemade music CDs in their possession, custody or control (regardless of whether such CDs are “in the house”).  If they do not, can you please advise as to what happened to the CDs Joel left?  This is an important issue.  Thanks very much.

From: Charles Nesson
To: Eve Burton
Sent: Fri Nov 21 05:37:09 2008
Subject: Fwd: Fwd: [cyberone-riaa] Motion to Quash – Arthur & Judie Subpoena

———- Forwarded message ———-
From: Tenenbaum
Date: Thu, Nov 20, 2008 at 11:25 PM
Subject: Re: Fwd: [cyberone-riaa] Motion to Quash – Arthur & Judie Subpoena
To: nesson

There are no CDRS in our house that Joel created.

Charles Nesson wrote:

eve burton writes: the question is whether there are any CDRs that Joel created that are in their possession, custody or control?  Are there any CDRs in their house that Joel created?

From: Eve Burton
Date: Thu, Nov 20, 2008 at 6:44 PM
Subject: RE: [cyberone-riaa] Motion to Quash – Arthur & Judie Subpoena
To: nesson
Cc: Timothy M Reynolds , Laurie Rust , Anne Allen

Just to be clear, your email below states that Joel did not burn any CDRs for, or give any CDRs to, Arthur or Judie, but the question is whether there are any CDRs that Joel created that are in their possession, custody or control?  Are there any CDRs in their house that Joel created?    Can you please clarify.  We would like to avoid unnecessary motions practice. 

From: Charles Nesson
Sent: Thursday, November 20, 2008 3:36 PM
To: Eve Burton
Cc: Joel Tenenbaum ; Arthur & Judie Tenenbaum; CyberOne RIAA
Subject: Re: [cyberone-riaa] Motion to Quash – Arthur & Judie Subpoena

we claim that your use of process against joel is abusive and improperly in service of the prosecution through civil process of an essentially criminal claim. as such it should stop, at least until the judge had had a chance to rule on our contention.

in any event both judie and arthur stated in their depositions that joel did not burn cds for them or give cds to them. your subpoena calls for them to produce all burned cds from joel they possess. they represent to me they have nothing to produce.

On Thu, Nov 20, 2008 at 12:18 PM, Eve Burton wrote:

Please explain what possible grounds you have to move to quash this subpoena (in this regard, you may want to look at our Motion to Compel the Tova subpoena b/c our arguments on relevance and burden are largely the same and address your likely arguments here as well).  Our subpoena is very limited and the CDRs are clearly relevant based on the deposition testimony.  You have opposed virtually every bit of discovery we have sought in this case.  The arguments you are putting forward are borderline frivolous.  At some point we may seek our costs for this vexatious strategy of opposing all discovery. 

CONFIDENTIALITY NOTICE – This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain information that is confidential or legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that you must not read or play this transmission and that any disclosure, copying, printing, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone or return e-mail and delete the original transmission and its attachments without reading or saving in any manner. Thank you.

FEDERAL TAX ADVICE DISCLAIMER We are required by U. S. Treasury Regulations to inform you that, to the extent this message includes any federal tax advice, this message is not intended or written by the sender to be used, and cannot be used, for the purpose of avoiding federal tax penalties.

—–Original Message—–

From: Charles Nesson
Sent: Thursday, November 20, 2008 8:47 AM
To: Eve Burton
Cc: CyberOne RIAA ; Joel Tenenbaum ; Arthur & Judie Tenenbaum
Subject: Re: [cyberone-riaa] Motion to Quash – Arthur & Judie Subpoena

we will be filing a motion to quash Arthur and Judie Tenenbaum’s subpoena

when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

today’s mail

Cory Doctorow: Why I Copyfight
tx wayne
tx cory

particularly liked this one

From: Carrie
Date: Tue, Nov 18, 2008 at 7:50 PM
Subject: You should be ashamed of yourself

I hope you feel real good about yourself… defending thieves who are stealing other people’s intellectual property. I work for a major music company and it’s people like you and your client that are putting people like me out of a job. Do you realize how many people it takes to make and distribute an album, or record a song for that matter? I’m sure you haven’t a clue, and more so you won’t bother to educate yourself on it. Instead you choose to defend some lowlife that is not only steeling from the artist, the record company & the publisher, but is also putting thousands of employees jobs in jeopardy. Regardless of whether or not the record company’s fines are extreme, there is no changing the fact that your client is a THIEF. Now we’re suppose to feel sorry for your client because the penalty is too harsh? What… he couldn’t afford the $.99 it cost to download a song? This guy not only stole, but enabled other people to steal. I just don’t understand how you could defend someone like that based on some technicality.


where do you work. maybe you’d invite me to come visit, meet the people

From: Shubham Mukherjee

Just saw this news on TechDirt.

“The RIAA is now celebrating the fact that Tennessee has passed
legislation that requires universities to install filters if they’ve
received at least 50 DMCA requests.”

That the law directly ties the infringement notices to the filters may
help us make our case.


From: breyer @courtroomconnect

Dear Charlie,

I was writing to see if you might consider requesting that Judge Gertner
allow any interested Media Company (including us in particular) to video
OR audio tape the ‘Capital Records Vs Alaujan’ trial.

We have been recording and narrow-casting quite a few federal
proceedings in the Eastern District of New York and the Southern
District of New York. The local rules in the Massachusetts District
Court are similar to both EDNY and SDNY and unquestionably allow the
Judge (in my view) to permit video and audio coverage if the Judge is so

I attach a recent letter we submitted in New York that should give you
an overview of the legal basis for such a request. Judge Gertner is
familiar with these issues since we submitted a full brief to her a
couple of months ago when we applied to cover the Country Wide
Litigation before her. She at the time said there were a number of
issues to be considered, such as consulting other members of the Court.
She delayed making a ruling and then the Country Wide litigation was
moved to another jurisdiction. Hopefully she will have spoken with her
colleagues by now and would be ready to proceed with a decision if she
were to get another request.

We do not have time as a third party to put in the request ourselves.
Our attorney at Boies Schiller advised us we would need at least 6 to 8
weeks to submit a request in the Massachusetts District Court. In
addition, we believe our chance of approval is dramatically higher if
one of the parties submitted the request.

We would be pleased to provide legal counsel and support (such as an
appearance, etc.) if that is helpful.

I hope all is well.


we could do this as a motion and an internet petition

american jury, to ivygate

———- Forwarded message ———-
From: Charles Nesson
Date: Sun, Nov 16, 2008 at 11:36 AM
Subject: american jury
To: IvyGate

what if the net itself became a learning machine

we can identify where the differences are among us

we could engage in process that would moderate them

we the jury of the internet, the court of public opinion

we need questions soundly framed for us

we need established form which if worked to its ideal will provide structured process for us

feel this in the federal rules of civil procedure

what are the rules within civil procedure for processing a claim that an opponent is abusing process

is it a defense for them that they have the congress on their side when we can show the disproportion in lobbying strength between their side and our side

can we as a cyberone class organize effective use of the civil process the plaintiffs claims make available to us to give substance to our counterclaim

the copyright theft deterrence act of 1999

nov 7, 2008
isaac has found the justice-of-the-peace case from alabama, which is close on point, an unconstitutional system for passing out speeding tickets unconstitutional because the enforcers were paid from the take. the declaration of this statute punitive unconstitutional would do a most wonderful service. when we argued Eldred in 1998 the Court then had little or no appreciation for the public domain. The public domain is, in internet terms, all you can get to on the net for free. The law for our digital future was set in place by the smart lawyers and lobbyists for the copyright industry in 1976 before anyone recognized the interest of the mass of coming population of digital natives that value what they can reach and do on the net for free.

Our case is not only against RIAA, it is against the court and court system that is exerting this power. It is against the statutory law, the law the legislature has passed, captured as it was and still in by special interest. Observe that the disproportion between actual damage caused by joel to the copyright holder and the damage mandated by the legislature to be given the copyright holder is in inverse proportion to the lobbying power of the copyright industry in the legislature compared to the lobbying power of joel and the teenagers like him who are meant to be frightened by the punitive damages being imposed.

seems to me we want to seek not only punitive damages for abuse of law and process but also injunctive relief, just as in the justice-of-the-peace case, which, for finding, isaac winds a prize. when the supreme court summarily affirmed the trial judge’s ruling and yet the extortionate practice did not desist, a second case was required in which were joined sufficient parties so that judicial injunction could stop the practice. We seek to join RIAA. We seek injunction not only against the filing of suits but the issuance of threats as well. Let the record companies make their money from people who make commercial use of their music the way it’s done in many other places, and even how it’s done in significant part right here in the United States. Notwithstanding the lobbying power of the copyright industry , let us move law toward an environment in which digital music can be non-commercially shared, instead of holding the law in the dead hand of the past . In the environment of internet any incentive beyond that is neither necessary nor proper as a means of promoting the useful arts. Interpreted to suit a digital age, the “exclusive right” of the constitution extends only to the right to exclude commercial exploitation.

how does this relate to Eldred, in which at oral argument internet was mentioned but once, the argument cast instead on commerce clause grounds. yet the idea is the same. what is this power that congress was granted by the constitution? how far does it extend? The presumption of freedom to share deserves not to be arbitrarily snuffed out amongst children who have been brought up to believe in the liberty to explore and learn on the net, enjoy cooperative connection, values of equality that come with sharing with others who in some measure are different from you, and certainly not to be snuffed out by draconian punitive deterrence.

How does one make argument based on observation that the current misallocations of power have produced distortion even in how we see the problem, distortion that imposes great dangers and costs on the system of law itself, how but by appeal to a vision of the role of law outside the system, Gödel’s proof, appeal to truth outside the system as basis for all action within, in metaphor the value of equitable well-distributed order like the ordinal numbers framed in context transcendental.

Did the copyright clause give congress the power to invest the law’s credibility in telling citizen’s not to click through check boxes? How many check boxes will you click through today, how like clicking to kill the enemies that appear on the screen in the adventure games you grew up playing on your way to how to get where you are going and find what you want, click click, on to the next level.

Is the idea to teach joel tenenbaum, in his sunglasses and redsox shirt, wise-ass kid, teach him the lesson that there is a real world out here. It’s a world of pain imposed on you by power. You were mistaken as a teenager to think you could ignore the warnings, sharing music and porn and digital skill among your adolescent friends. Learn that what you were doing because was morally wrong because you violated law that we have written.

or is it time for the recording industry to see that reality has changed, and all their lobbying power in the congress, and all their litigating power in the courts, and all their manipulation of the public mind to equate sharing music with theft, cannot stop the growth of a digital environment in which peers have ability to gather and share.

i believe the strategists of RIAA see that, and that their litigation strategy is designed to create such a scourge that their real strategy goal of placing copyright filters on the net will come to seem a welcome alternative to the universities and commercial internet service providers on which they will be imposed and to the congress, which will do the industry’s bidding of imposing them.

Is it not your ultimate goal to alter the architecture of the open net in a way that you believe will allow your industry profit. Is that not a motive and purpose ulterior to this litigation.

learn to ask for help

today i teach my class how to write interrogotories.

here is a strategy suggestion from our expert on peer sharing open networks, johan:

“Slashdot community involvement.
Hopefully we can copy this strategy.”

so i go to slashdot and read ray beckerman’s request for help in drafting interrogatories and see 661 responses

posted by Zonk

NewYorkCountryLawyer writes “The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot (‘What Questions Would You Ask an RIAA Expert?’) and Groklaw (‘Another Lawyer Would Like to Pick Your Brain, Please’) communities were asked for their input on possible questions to pose to the RIAA’s ‘expert’. Dr. Doug Jacobson of Iowa State University, was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor’s lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf) (ascii). Ray Beckerman, one of Ms. Lindor’s attorneys, had this comment: ‘We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers’ responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy investigation and junk science upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.'”

its a visionary thing. we can make it work.

hello slashdot. thank you techdirt.

Big Guns Come Out In Effort To Show RIAA’s Lawsuits Are Unconstitutional

our big gun is the open net
we can harness our energy in a net to catch our enemy in his fall
stop RIAA depredation

to get significant press attention and vital community feedback.

thank you barack

thank you barack and the millions who support you. we all together have taken back the ideal of america. you barack led us self consciously and openly. you teach us as you lead. you spoke to us in second person, we who share the spirit and give support, we the people

we the people of the internetwork of your support

what will be your stance toward joel tanenbaum
where on your list of concerns the threat of a copyright-filtered net
how can the net make the threat clear to you

i meet for lunch today with yochai benkler
berkman professor of law

thank you squidhammer

Is It Civil Or Is It Limited to Criminal – Beyond RICO and FCPA
thank you ellen podgor

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

leila on ichat

really right on funny comment at the bottom

October 31, 2008
Harvard Law Professor Takes New Tack Against RIAA
(from the chronical of higher education

A law professor at Harvard University has filed a counterclaim against the Recording Industry Association of America, arguing that a statute it is using to sue Joel Tenenbaum, a student at Boston University, is unconstitutional, Computerworld reports.

The RIAA had sued Mr. Tenenbaum for violating the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 — by allegedly copying and distributing copyrighted songs. But according to the law professor, Charles Nesson, that criminal statute cannot be applied to a civil case in federal court.

Mr. Nesson is challenging both the RIAA’s use of the law and the law itself. It gives the RIAA prosecutorial authority and “unbridled discretion” to sue millions of people, he argues, according to Computerworld.

This challenge to the RIAA, the magazine says, is broader than many recent ones that focus on the group’s means of gathering evidence against alleged pirates. —Sara Lipka
Posted on Friday October 31, 2008 | Permalink |



Thanks, Joel, for encouraging students to commit theft. That’s why you became a lawyer, right? To help criminals. Your parents, grandparents, and great grandparents would be so proud of you. We all are.

— gl Nov 1, 07:26 PM #

Thanks Joel for helping to reign in unregulated vigilanteism. To #1 you know they (a private, un-licensed, un-badged, un-warranted corporation) can search your computer without your knowledge and use any suspicion they might have to slap a huge lawsuit on you which you will be encouraged to settle (for $2000) or risk going to court and incurring lawyer fees far in excess of that. They, in essence, blackmail the accused (without ever having to prove anything) into forking over $2000. I’m opposed to theft and I think that file sharing is deeply problematic but I find the RIAA’s methods to be more so.

— J Nov 1, 08:38 PM #

You’re right, gl. These are the types of crimes we need to worry about. Let’s make sure this kid is fined $25,000 per song, much of which will go to attorneys’ fees and the recording corporation (which is starving for money, I’m sure).

Our society is so horrendously overregulated that I find myself actually NOT caring about these so-called “crimes.” Even if it were my intellectual property—my dissertation, for example—I don’t think I’d care. Let’s focus on some real issues. People are hungry, losing their homes, in real trouble. What a waste of time, money, and resources.

— Julia Nov 1, 10:26 PM #

He’s not a lawyer you douche. He’s just some kid who was caught DL-ing music. How are you blaming him for anything?

— Sam Nov 1, 10:59 PM #