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my edit of what lessig has to say


design and build a digital registry of copyright and public domain

embedded in larger design of the digital library of knowledge

Amicus to the Supreme Court – Whitney Harper

Charles Nesson’s Amicus Reply* to
Respondent’s Brief in Opposition to Whitney Harper’s
Petition for Certiorari to the United States Supreme Court

Section 504(c) of the Copyright Act establishes three levels of exposure to statutory damages — the lowest level for innocent infringement, a top level for willful infringement, and a middle category for infringements which are neither innocent nor willful. Whitney Harper epitomizes the innocent infringer category: she had no knowledge or understanding that she was infringing copyright by listening to music on her computer.

Respondents deny that there are three categories. They assert, “The Copyright Act has only two levels of culpability: infringement, which is a strict liability offense, and willful infringement, which requires knowledge or reckless disregard.” Capitol Records, Inc. v. Thomas-Rasset, Case No.: 06cv1497 (MJD/LIB) (2010) (Plaintiff’s Response to Amicus Curiae Brief on the Issue of Jury Instruction). They say the innocent category is gone, eliminated by § 402 because Respondents put copyright notices on the physical phonorecords. Innocent (unknowing) infringement thus moves up from the eliminated bottom category, according to them, to become §504’s middle category; knowing infringement becomes the statute’s top category, encompassing all infringements ranging from the merely knowing to the egregiously willful.

It is this absurd interpretation of § 504 that undergirds the exorbitant and wildly unconstitutional awards Respondents have obtained against Jammie Thomas-Rasset (first trial – $221,000; second trial – $1,900,000; third trial – $1,500,000) and Joel Tenenbaum ($675,000). Respondents reason that because “standard infringement requires no knowledge or intent”, the “willful infringement” top category requires no more than knowledge or intent. Ibid.

This cannot be the law, yet it is the premise on which outlandish awards against downloaders have been based and are presently being defended. It will become the law if the judgment of the court below against Whitney Harper is allowed to stand.

Respectfully submitted,
Charles Nesson
with assistance of Phil Hill, J.D. ‘13

*The Supreme Court does not permit amici to file reply briefs, but here’s what I would like to have filed.

from ray beckerman’s blog

Wednesday, November 03, 2010

According to court records Capitol v Thomas-Rasset damages retrial commenced yesterday, continued today

According to court records, the damages retrial in
Capitol Records v. Thomas-Rasset commenced yesterday and was continued today, Prof. Nesson was granted leave to file an amicus brief, and the RIAA filed a responding brief.

Nesson amicus brief
RIAA response


podcast interview with kiwi camara, whitney harper, joel tenenbaum:
kiwi tells it like it is

Copyright Questions

“At the heart of the approach France and Britain are taking is the so-called “graduated response,” by which ISP’s would be required to issue warnings to serious offenders to stop illegal file-sharing. This is the most sensible legislation to emerge in the past decade to deal with “free.” It is immeasurably better than the ugly alternative of suing hundreds of thousands of individuals.”

-Paul McGuinness (U2’s manager) – from Rolling Stone Magazine, 9/10/2010

Which is the better approach to teaching children to pay for copyrighted music instead of downloading and sharing it for free?
(a) the U.S. response – strict liability, statutory exemplary punishment);
(b) the French/British graduated response – ISP termination of internet service;
(c) combination of (b) and (a);
(d) none of the above.

2. Could one formulate a graduated response strong enough to lead most users toward buying music rather than downloading it for free, yet with process so fair and sanctions so gentle that those on whom the sanctions fall (and their parents) would consider them just?

Community of Good Faith

why has wikipedia not become a model of how to get along and get something done? true, there are elements tagging along who don’t seem to get along, instead running running counter to the consensus of good faith at wikipedia’s core, but they are back-eddies as the core force of wikipedia rushes forward in development of public knowledge. wikipedia is a collective knowledge generator

what are the lessons to be learned for other forms of knowledge generation, or is all knowledge to be included in wikipedia, leaving none beyond its purview

who takes over the functions performed by jimbo wales after jimbo wales is gone — may he never die

who will resist the temptation to fork the project to a new form driven by google ads run by a company that honors core writers and editors of wikipedia by offering them paying jobs

which fork will google rate higher





pictures of whitney at sixteen
pictures of sibley and camara representing her.

this is a story that goes back to my torts class, 2002,
when a brilliant student of mine got hurt for putting his class notes up on the net and where a bullying email to a victim in the class led to anguish blamed on him and how that cost him his academic career and pushed him into law practice with a classmate defending innocent and unjustly burdened people.

consider this media for the law firm, should we ask sibley and camara to sponsor the film? further question for the question tool, itself a pedagogical invention capable of taking socratic dialog to new dimension.

how to save the light. post it. put it in format to allow others to follow the story. make the answers to the questions clickable. fill in framework.

knot crazy1, bring it on home


last day on alchemy – at least for awhile

back to wesport, just put laundry in the dryer, end of an amazing time, beginning of another

Jury Nullification

the jury did just what it was told to do. the jury is not to be faulted for the verdict. the fault is in the law.

the judge tells the jury what the law is, and orders the jury to enforce it. This is the first constitutional hypocrisy. The Jury is the law. “You are the law.” Paul Neuman in the Verdict had it right.

People ask how can common-sense juries have returned verdicts of $675k against Joel and $1.92 mil against Jammie Thomas Rasset? The answer is the verdict form and the judge’s order to the jurors to fill it in as they are told. The jury is not to blame. The fault lies with the interpretation of the law that shaped the form and with the judge’s order that the jury is bound to it. Congress never authorized it. Our Constitution does not condone it.

On this we have just begun to fight.

There is no place on the verdict form for judgment whether what Joel did was right or wrong, fair or unfair. The law the RIAA persuaded the judge to impose simply declared the conduct of a generation to be wrong, no jury trial. Just fill in the form, the jury’s only task to say how much the defendant must pay, with instructed minimum and maximum for each infringement.

thirty times

The jurys’ bankrupting verdicts are not flukes. They are the product of rotten law. Proof in math is often made by reductio ad absurdum: If your logic leads to absurd result then your premise must be wrong.

Fairness and Justice are jury issues, in this case taken from the jury, the jury’s fundamental function nullified.

The table is now set. The question is presented. Next event is Judge Gertner’s opportunity (or not) to remit the excessive award against Joel to a reasonable (constitutional) amount.

building the public domain

public access through the net to open noncommercial media generated from public proceedings

yesterday my class in evidence watched obama’s inauguration live on the net along with millions of others. cable clearly clearer and more reliable but net ok

we have been lured by copyright to think of the public domain as what’s left over after copyright has taken its share.

who owns the copyright in the inauguration event
no one you say
who owns the copy rights in recordings of it
may i freely copy from nbc

who makes the recording that is in the public domain
who makes the recording available to the public

terry fisher for copyright czar

his appointment to follow an interim period during which judge nancy gertner presides over a trial between riaa and joel

joel has the net in back of him
like the verizon commercial

during the interim period a trial unfolds within the structure of the federal rules presided over by a federal judge

all of the emnities of the past imposed by riaa’s abuse of music lovers and computer users are brought to the surface of our national consciousness and resolved.

the trial process itself is understood and represented as civic education

we the people conceptually instantiated

our love for creative artists expressed

terry fisher for copy-law czar, founder of i-law

building on john palfrey’s task force report to Attorneys General

zittrain to show kids the way tol digital empowerment

berkman center to underwrite bringing joel’s case to the open net

merry christmas to the net

To: Cary Sherman

hi cary,

thanks for your note. i don’t really understand why you are continuing the litigation, but if that’s your position then i ask you to agree to our motion, just filed, to admit internet to the courtroom, and then to join with me in making the trial the best possible example of civil discourse within the rules of federal civil procedure.

happy holidaze
best to you and family from me and fern