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Monthly Archive for June, 2009

FRE 102 – petition to judge souter


june 29, we go this morning before judge gertner with all discovery issues on the table. the questions we ask define what we consider to be relevant. the answers to the question of whether we are entitled to ask the questions we ask are statements by the law which admits evidence to the jury of the defendants’ peers if the answers to the questions we ask might make a difference to a reasonable juror. Federal Rules of Evidence 102, 104(b), 401, 403.

Rule 102. Purpose and Construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

a jury of the defendant’s peers is called upon to decide the fate of a man brought before it by force under rules that express the wisdom and justice of American law.

the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself. The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) (emphasis in original).

law of the law lord is wisdom in its making, justice in the application

wisdom comes from we the people. the function of the rules of civil procedure and evidence is to shape the issue and the body of evidence the jury of the defendants peers is asked to consider.


I am the Weld Professor of Law and founder of the Berkman Center for Internet and Society at the Harvard Law School. I represent (pro bono) Joel Tennenbaum, a student being prosecuted by the RIAA for downloading and sharing music on a peer to peer network. cite to case name here On his behalf and on behalf of the public, I moved that the digital public be provided access through internet to gavel to gavel recording and narrowcasting of the pretrial proceedings in this case. District Court Judge Nancy Gertner granted this motion with expectation that further requests pertaining to access for the digital public later public pretrial proceedings and to the trial would be entertained. Digital recording made with the Court’s already installed equipment was to be narrowcast to the Berkman Center which would serve it to and share it with open net. cite to her order here

This plan was frustrated by the First Circuit Court of Appeals, which issued an extraordinary writ of advisory mandamus prohibiting Judge Gertner from implementing her order, declaring that the local rules of the District Court denied her all authority to do so. cite to the 1st Circuit opinion and order here. A hearing en banc was denied on …….. A petition for certiorari to the Supreme Court of the United States was filed on …….. and is now pending. See attached.

The trial of this case is scheduled for July 27,2009. Judge Gertner has indicated that she must abide by the First Circuit order of prohibition unless it is stayed or overturned.

I request that you, as presiding justice for the First Circuit, suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the Supreme Court of the petition for certiorari in due course.

It is time to open the courts of the United States to the internet and this case is a perfect test case in which to do so. The issues in it are of particular concern to the digital generation. The legal debates about them should be digitally recorded and accessible to them. To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. Given the court’s scheduling of the trial on July 27, 2009, in the absence of the requested suspension of the rule or a stay of the trial, the petition for certiorari will be moot. For these reasons, we seek your assistance.

Respectfully submitted,

Charles Nesson
Counsel for Petitioner Joel Tenenbaum
June 25, 2009




This is evidence that law school may teach you what process is, but not how it is used. Or if it is used.

This is evidence of the flexibility of judges. Evidence of the flexibility of rules.

I have embraced Vinny. I imagined a conversation between you, your students, Judge Gertner, and Mona Lisa Vito. It was, in Judge Gertner’s words, a “moment of informality.” Is Lisa describing a deer being shot in the woods? Or is she lecturing about this procedure? The request to record this moment stems from your mission. It is what this case is about. It may not be something we can learn in law school.

Evidence is what you make of it. Context can change its impact. Maybe context can change its truth.

Of what is this evidence?


RIAA’s Best Case against Joel

“So it is said that if you know your enemies and know yourself, you will fight without danger in battles.”
-Sun Tzu, The Art of War

From the mind of the RIAA:

We must know our strengths, and Joel’s strengths, to win. Another lesson from Sun Tzu is that positioning is critical. We cannot let Joel be the “victim.” We must position ourselves as the victims. Perception is key. We cannot let the jury – or the judge, or the public at large – see this as “Joel fighting back.” It must be the RIAA fighting back, because Joel started this mess by downloading songs he didn’t have a right to. We, the RIAA, are just fighting back using the means granted us by congress.

We must let the evidence speak on our behalf. There is evidence connecting Joel to songs which were downloaded. He did not pay for these songs. They are not his. If we show this to the jury, we can win our case. Let the evidence speak (or speak for the evidence) [snip].

KISS – Keep It Simple, Stupid. Connect Joel to the IP address, or the account which downloaded these songs, or the computer that stored them. Focus on those things we can prove. We have to maintain our position as the wronged party – don’t let Joel maneuver around this.

We have to keep the jury’s focus on what matters for our case – the actual evidence of Joel downloading.

We “know ourselves” – we know that the evidence of the downloads favors us. We “know our enemy” – Joel will try to make this case about other things; he will harp on that which we cannot prove. He may use his soapbox to obfuscate the issues, but we will focus on our evidence and stay true to our position. If we know ourselves and know Joel’s interests, we can win the battle without danger.

motion to compel anwers to interrogatories

hearing coming up tomorrow
love and support to richard parker
constitutionalist for we the people

Forwarded conversation
Subject: interrogatories

From: Charles Nesson
Date: Tue, Jun 16, 2009 at 6:18 AM
To: dcloherty

dan, will you respond to our first set of interrogatories served on you may 8, 2009, and if so when

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.

From: Cloherty, Dan
Date: Tue, Jun 16, 2009 at 6:56 AM

The responses were served last week. When I get to the office this am I will get a copy and send it to you via e mail.

From: Charles Nesson
To: Cloherty, Dan
Sent: Tue Jun 16 06:18:22 2009
Subject: interrogatories

From: Charles Nesson
Date: Tue, Jun 16, 2009 at 10:54 AM
To: “Cloherty, Dan”

got them from victoria, thanks.

From: Charles Nesson
Date: Thu, Jun 18, 2009 at 8:21 AM
To: “Cloherty, Dan”

please respond immediately to our second set of interrogatories.

From: Charles Nesson
Date: Thu, Jun 18, 2009 at 10:44 AM
To: “Cloherty, Dan”

dan, in light of the judge’s ruling on fair use, will you nonetheless be maintaining your objections to answering our first set of interrogatories, and making similar objections to our second set?

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.

motion to strike john perry barlow

Motion to strike


Fair Use and Open Education:

One of the strengths of the copyright system is the acknowledgement that although authors have rights to their work, others can use copyrighted work when it falls within the boundaries of Fair Use. Whether articulated as a right to use copyrighted work or as a defense against charges of infringement, the Fair Use doctrine has promoted education, social criticism and new forms of artistic works. The long history of Fair Use and the assumptions that follow when it is invoked limit its utility for creating a useful system of materials for Open Education.

Traditional Fair Use doctrine was only common law in the U.S. until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the Fair Use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.[

However, the educational prospects emphasized in the first prong of Fair Use are underutilized. This underutilization stems from the belief that ” many, if not most, secondary uses seek at least some measure of commercial gain from their use” (American Geophysical Union, 60 F.3d at 921). Essentially, the interpretation has become that not all educational use is Fair Use, and perhaps not even most educational use in some circuits. A non-profit website that reprints articles for educational use would almost certainly be found to infringe copyright, if it can be shown that the market for the original has been affected, even if the website itself is non-commercial.

With the growth of international online educational opportunities, Fair Use should be reevaluated. Until the Fair Use doctrine truly incorporates the educational uses needed for Open Education, traditional copyright hinders the development of equal access.

Open Education is not localized to the United States, but is an international phenomenon. Copyright law and the application of the educational prong should be brought into line with the reality of the online environment. Open Education has been defined in a myriad of ways (as can be seen at

Open Education is any individual having free access to a variety of educational resources. It enable individuals or communities to engage in learning whether for their own pleasure and intellectual curiosity or for professional and academic advancement.

Open Education is an opportunity. I suppose at times it will be a majestic and inspiring, white canvas. Or a black hole. A space that allows one to be outside one “self” and experiment with alternate “selves” with different morals and beliefs.

Open Education is a realization of Rousseau’s delight-led learning. It provides a framework through which students can explore topics rather than rote-based learning. Open access is the first step to creating an interactive learning environment.

Ultimately, the key to the success of Open Education is the equality of opportunity.

Caity Ross

TOP 2009 EVIDENCE EXAM question 2

Excerpt of Remarks to RIAA/MPAA Joint Luncheon

… Joel’s supporters have a have a bold vision for the future. They see an open net, an artistic culture of sharing and collaboration, a culture of unbridled creativity and innovation. Beyond this, they see the net as a means of reorganizing and democratizing society; of breaking down centralized power structures and propaganda systems, and of breaking out of outmoded mores and traditions. They argue that existing intellectual property law stands as an obstacle to their imagined future and the benefits it promises.

The fact is that openness, creativity, innovation, collaboration and freedom are all desirable goals. If we are seen as opposing these things, we will lose. Joel’s supporters have framed this as a battle between the future, which they represent, and the past, which we represent. Our challenge is to demonstrate that Joel’s supporters have not set a realistic path for achieving these goals, but that we can.
To do so, we must first be honest with ourselves. Our industry is, to borrow a phrase from social science, “path dependant.” Our options for future evolution are constrained by the inertia of the systems we have developed over the past century. Countless peoples’ time and resources have been devoted to developing this way of creating and distributing art and culture. This is not simply a matter of sunk costs and it encompasses more than just our shareholders, our employees and our artists. It encompasses the local economies of which we are the lifeblood, the human capital, the specialized expertise developed to produce our products, the distribution networks, infrastructure, financing systems, talent scouting and on and on.

What the internet vanguard fails to recognize is the extent to which they too are dependent on this path. We represent more than just a way of doing business—we are the way culture is financed and created in our society. Joel’s supporters believe that we can simply be consigned to the dustbin of history—as if having reached the top rung you could saw off the ladder beneath yourself. They ignore the enormous downside risk to abandoning this path. Starve us of revenue and musicians are not paid, movies are not made, and the engine for cultural production collapses. Without the mass culture we create, there would be no shared experience to forge our national identity; to serve as the glue that holds our society together; to enable us to relate to one another in a meaningful way. Without mass-culture there would be no counter-culture. Without the art we create, what would there be to share, to borrow, to respond to, to remix, and to define oneself in opposition to? Art and information must be, for lack of a better word, commodified in order to be organized and integrated into a coherent social fabric.

Our copyright laws are imperfectly suited to the realities of the internet and must be reformed. However, if we did not resist the virtually unlimited free distribution of our products that is taking place over the internet, we would be bankrupt long before any reasonable accommodation could be reached. Joel’s supporters must recognize that our industry plays a vital role in fueling the creativity of the open net. In turn, we must recognize that the collaborative net culture creates genuine value. Together, we must find a way to harness and monetize this creativity and innovation without dislocating everything that has come before. …

transition to freedom

From: David Weinberger
Date: Sat, Jun 20, 2009 at 12:24 PM
To: Berkman Friends

Chris Anderson’s book about the new economics of freeness
1. Chris points to the moment when radio broadcasts made music free as an example of a time when a product suddenly went from for-pay to free. Drake is wondering if there are other such moments in our history.

At 12:47 PM 6/20/2009, Peter Suber wrote:
> David and Drake, A similar moment occurred in 1840 when England introduced the postage stamp. Before that, mail was free for the sender, but the recipient had to pay to collect it from the post office. When mail became free for recipients, its use skyrocketed.
> Like mail, radio is not free for everyone, just for the “recipient”. It has production costs, but they are paid by the “sender” so that end users can get the content free of charge.
> In this 2002 article, I compare “going postal” to the open access revolution now in progress –shifting the costs of research publications from recipients to senders. (In early 2002, the term “open access” was too new to be widely understood, so I used the older term “free online scholarship” or FOS.)
> Peter
> Peter Suber

the little hills of truro – jammie thomas rasset verdict

morning walk and mail – will i land in jail

From: Debbie Rosenbaum
Date: Wed, Jun 17, 2009 at 6:50 AM

after yesterday’s ruling, we need to be on point, on target, and on the ball. we need to get our experts lined up. we need to think about trial strategy. we need to draft. we need to prepare. WE NEED HELP.

if you ever take my advice, take this: let’s get a law student to help us full time until trial. a while back, i emailed you about a guy i knew who would be perfect for the job.

From: Charles Nesson
Date: Thu, Jun 18, 2009 at 5:49 AM
To: Debbie Rosenbaum

what point do we need to be on
what is the target
our experts are getting lined up
trial strategy is well in hand
what do we need to draft
what do we need to prepare
what do we ask the law student to do
delighted that you will be at trial
here’s my todo
june 22
expert reports
any further discovery
june 23
motion to compel response to interrogs
jury instruction
motion to see jury film
media sentry motion
june 24
letter to souter

has your professor done something illegal
what does it mean that your judge says so


debbie rosenbaum – why do i record?


From: Debbie Rosenbaum
Junw 11, 2009 at 9:25 AM
To: nesson

you’re being portrayed as an extremist nut-job in the media for all your recording stuff.

one idea: maybe you can blog about *why* you like to record things.

is it because it gives you a different level of understanding when reflecting on a situation?
is it because you like to share your life with the world?

what is the impetus for your passion for recording? if you can help the public *understand*, maybe you’ll elicit more sympathy for your efforts.

From: Charles Nesson
i’d rather demonstrate the value of it by continuing to audio blog the development of the case, but if someone curious was to interview me i’d be happy to explain. how about you first

From: Debbie Rosenbaum
i was thinking you could email me your explanation and then post it to your blog. =)

From: Charles Nesson
because if you don’t record you have nothing to post that the public can listen in on, and nothing to listen to yourself if you have need. the only proof you have of what happened is your own recollection, maybe the hearsay reports of others, and the opportunity to pay money for a transcript you can’t get for ninety days.

i believe this is an important case which calls for public attention. people are being unfairly ground beneath the crushing wheels of federal process put in riaa hands. i believe the public has a right to see how its courts are being used and joel and jammie have a right to show them. to me it seems a fundamental citizen’s right to record ones interactions with the state.

to say nothing of my own interest in representing joel. my memory is not good. i rely on my recorder to allow me to review and recall. this is integral to how i work.

and i’ve been at it for a long time

From: Debbie Rosenbaum
so for you, it’s “objective evidence.” if the rest of the world gets by on “hearsay,” why is it so important to you to demonstrate objectivity?

From: Charles Nesson
pls send me the press that is so describing me

From: Debbie Rosenbaum
you should share those images on your blog. they are fabulous!

i read more than the average consumer of press that follows you and the tenenbaum/thomas cases, so my view is skewed, but your persistence in insisting on recording collectively comes across as annoying.

your/our non-traditional tactics have pissed off a lot of people, drawing wide eyes and criticism from both should-be-friends (beckerman), should-be-foes (sheffner), that letter you posted on your blog yesterday, and david’s continual harsh criticism on our clinical list-serv re: going to the SCOTUS with our webcast issue. with the ability to express views with wide distribution and low cost via the internet, the message that we’re/you’re crazy comes across; there are a lot more of “them” than there are of us.

we aren’t practicing law in the traditional sense, which scares a lot of risk-adverse attorneys. personally, i find it liberating to challenge the boundaries of legal procedure rather than conforming to the generations of “this is how it’s always been done so you must also do it this way,” but that’s also why i’ve gravitated towards having you as a mentor and teacher. it’s not the norm.

one of the best messages i’ve learned in this entire experience came from sheffner, much to my dismay, who explained that opponents can criticize each other tastefully and respectfully, which he has accomplished … but others have not. that’s my continual battle in PR efforts. and in the end, all these thoughts just underscore the need for strong and proactive PR to “explain what we’re thinking” at every move in the case.