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THE CASE OF THE INNOCENT INFRINGER

THE CASE OF THE INNOCENT INFRINGER

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

:<)

Joel Tenenbaum has a Fair Use Defense

Until the time when the recording industry started to offer individual songs in a freely transferable digital format, the law should consider it to have been fair use for a consumer to download freely transferable music files peer-to-peer.

Judge Gertner herself envisioned such a consumer “fair- use”, opining that consumers using Napster to download copyrighted songs might have a viable fair-use defense to copyright infringement for downloading and sharing that took place before the recording industry made its songs available online. As she put it in her summary judgment ruling against Tenenbaum, “The Court can also envision a fair use defense for a defendant who shared files during a period of time before … paid outlets were readily available.” But paid outlets of what?

Ignoring the usability of the industry’s products in comparison to products available to the consumer peer-to-peer means ignoring the deepest questions raised by the “fair use” doctrine in the context of the online environment: Who does the “fair use” serve? What is the “fairness” contemplated? From what point of view is that fairness to be judged? If fair use is to be judged from the industry’s perspective only, then the permission or lack of it from the copyright holder is all that counts. From the point of view of the industry, failure to offer online availability should not matter as long as the songs could be purchased on CD’s in record stores. Whatever the industry offers, whether physical or digital, whether in stores or online, is what the consumer must take, regardless of how much more usable the available peer-to-peer online product may be.

But if fair use is to be judged from the user’s perspective, then making use of a new, superior form of music product – downloadable, fully transferrable music files – while there was nothing comparable available on the market, can easily be seen as a fair use.

The recording industry made equivalent products available in 2007, when Amazon began offering songs for sale in freely transferable form. From that time forward, a consumer’s fair-use defense to infringement would no longer be viable. Marking this line would provide a principled and clear end to the interregnum. It would leave the recording industry with the benefit of the attitude change that its litigation campaign has effectuated, yet relieve the digital generation of undeserved guilt that has been heaped upon it, and remove the legal system from the position of forcing an inferior product on the consuming public.

tennenbaum opposition to entry of judgment and injunction

public freedom versus copy right
copy right versus public freedom
which side are you on?
should public freedom bear the burden of proof?

Move with the development of creative commons and the lack of copyright registration to a cyber world in which amateur and professional entertainment mix, in which who knows whether bits are “copyright” bits or “creative commons” bits. how can one know this without having additional information not communicated directly through the medium? one has to have another mode of knowing. there has then to be another mode of teaching a rule of behavior with respect to the cyber bits in question.

This is wrong, in the sense of bad construction of cyberspace. One can see the impossibility of educating man woman and child world over about which bits are copyrighted and which bits are not. the bits themselves give no evidence either way.

Copyright’s rule in cyberspace will be built into the code that runs the space. If fair use for we the people is to be preserved for the future then its constraint on copyright must likewise be built into the code. The challenge of building cyberspace so as to preserve human freedoms is immense. Resolving the challenge by crushing consumers with blunderbuss statutory damages at the copyright holder’s behest is neither intelligent nor fair. This is a time in our nation to trust the code of our Constitution. A presiding judge should respect the deliberative roles of Congress and the jury instead of deciding for herself.

make a line going forward that the generation of digital natives can live with proudly instead of a blurred line that leaves them vilified and condemned as thieves. make it the predicate for advancing the right to jury trial as the ultimate bulwark of our freedom

Tenenbaum Opposition to Entry of Judgment and Injunction

Is the Internet a Human Right?

DJ JOEL

Social Justice in the Age of Facebook


peter suber points me to ed felten’s brilliant take on three strikes for books

howard responds, and i to him

Dear Charlie:

Here’s my response.

http://excesscopyright.blogspot.com/2009/08/my-response-to-prof-charles-nesson-re.html

Best,

Howard

***
Dear Charlie:

First of all, given the facts as they have come out both before and as reported in the various media during the trial (I obviously haven’t seen the transcript), I still tend to doubt that this was a particularly winnable case.

so stop right there. you mean winnable at trial.

BTW, in 2004 we “won” this battle in Canada before it ever really started by preventing the disclosure of the names behind IP addresses in the Canadian version of the RIAA’s attempt to sue individuals. And we have a similar statutory minimum damages regime here, inspired by the USA but with some differences such as a max of CDN $20,000 per work. Still quite dangerous. The Canadian record companies were unable or unwilling to provide sufficient admissible evidence to warrant this disclosure in light of the “risk that the information as to identity may be inaccurate”, the resulting exposure to serious civil liability and the invasion of privacy. We were helped by a pretty good federal privacy statute in Canada and at least two ISPs that seriously stood up for their customers at the time (Shaw and Telus). See here and here. I was involved on the winning side. It’s really too bad that these cases weren’t likewise stopped at the outset in the USA, but that battle appears to have been lost a long time ago in other cases.

and never fought, a tragedy in leadership for harvard to stand idly by, unwilling to put its weight behind motion to stop their subpoenas

There’s really not much I can add to my original blog post from August 3, following the July 31 verdict and my other posts on this.

I can point to Ray Beckerman’s “wish list”, which outlines several possible technical and practical arguments based upon such matters as dates of registration, lack of proof of actual “distribution” according to the language of and case law on § 106(3), etc. which might or might not have worked to get Joel off the hook. Ray also mentions our Canadian case in his point that “Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.”

all respect to ray, these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.

I don’t know which of these issues were addressed at trial or how much evidence on these issues there is on the record.

Apart from a victory based on issues such as those on Ray’s “wish list”, the only other conceivably “winnable” issues might have been a very uphill fair use argument and a potentially more successful argument on the unconstitutionality of the statutory minimum damages provisions. I know you have tried to pursue both of these issues.
these are the issues, not whether joel “did it”

• Fair Use. If there was a winnable argument here, which far greater experts than me have doubted according to your own blog,

stop right there. starting from scratch the fair use issue now looms as a fundamental question in the allocation of function between judge and jury as providing a limitation in wisdom to the expansive power of copyright, so let them doubt, then consider, then be convinced

it would probably have involved a lot of analysis of the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) and this would presumably have required a lot of economic evidence. This evidence might have come, for starters, from your Harvard colleague Oberholzer-Gee and/or Andersen/Frenz in the UK as expert(s) to show that there was evidence as to no overall harm and maybe even a “benign” or “positive” effect on “the potential market for or value of the copyrighted work”. At least such evidence might have enabled Judge Gertner to deny summary judgment on this issue. It would have also enabled a great debate with the very able Stan Liebowitz, with whom one may disagree – but he is still a very accomplished and important economist in the IP area and an experienced expert witness.

as far as i can see leibowitz and oberholzer-gee essentially agree, stan putting his value judgment on “professionally” recorded music and felix on the growth in volume and quality of music from the people. but see how this very question mistakes the nature of the inquiry as a judgment for the jury to make case by case, this being joel’s case and joel’s right to trial by jury in which the fairness and justice of the actions being taken against him in the name of the state are open to address

Maybe other evidence in addition from someone with knowledge about the economic insides of the record industry would have helped. I frankly doubt, as you have suggested in the Canadian media in your interview with Jesse Brown, that the lack of “fairness” on the part of the record industry either in the way it has marketed music to its customers or treats is customers in its litigation campaign is a winnable fair use argument under §107, even if you are right that the four factors are not “exclusive” and that Court can go beyond the four factors and even devise a new “fair use” affirmative defense. Whether or not there is the makings of a potential “abuse of process” or Posnerian “misuse” of copyright argument or something along these lines is hypothetically an interesting issue to speculate upon for another day, but doesn’t seem to be on the record here and would also presumably require a lot of solid evidence.

say more about Posnerian “misuse” of copyright. and note how the whole bogus strategy of imposing statutory damages on noncommercial direct infringers was put across on posner’s aimster dicta raised to holding by easterbrook in a case managed by jenner & bloch in which no challenge to the imposition of statutory damages was made

• Unconstitutional statutory minimum damages. This seems potentially much more winnable than fair use. But if there is a winnable argument here, it would probably also require lots of evidence to show that a statute that permits an award of up to $150,000 per work in these circumstances and $22,500 per work times 30 works as actually awarded for downloading and supposedly sharing 30 songs that sell for about $0.99 each retail goes so far beyond any possibly valid “deterrent” or “punitive” purpose that it is, on its face, unconstitutional.

:<)

Unfortunately, the SCOTUS may not see this as self evident. Again, maybe Oberholzer-Gee or Andersen/Frenz could have helped here, and perhaps other experts on the economics of the music industry, how file sharing actually works, how many of the ocean of unauthorized downloads can be causally attributed to Joel, and the overall question of proportionality. Maybe some expert sociological or criminological evidence on “deterrence”. But given the post-Eldred approach to deference to Congress on quantifiable copyright policy matters such as extending the term from life + 50 to life + 70, I would imagine that you would now need a great deal of solid evidence to show that this choice of a numerical range of a minimum of $750 and up to $150,000 per work for willful infringement is not only beyond “arguably unwise” but also somehow clearly unconstitutional. For better or worse, “unwise” and “unfair” may not equate with “unconstitutional.”

there are two questions: first, when, if ever (and i say never) did congress decide that draconian damages against consumers was the appropriate response to peer-to-peer file sharing? second, reached only if the answer to the first requires it, would be whether the power to impose this damage at the unconstrained behest of the copyright industry by civil process (thereby bypassing the protections afforded criminal defenants) with no proof of actual damage caused by the defendant, purely for deterrence of conduct involving no trespass is unconstitutional.

BTW, there is an important article in the works by Pam Samuelson and Tara Wheatland, which I’m sure you know about, but for the benefit of other readers can found here as a work in progress (recently revised).

[more to come]

Best regards,

Howard

cyberprof critique and initial response

from howard knopf
to Cyberprof

My take on Tenenbaum:
[check this out, you won’t be disappointed]

What are the “teachable moments” here?
___
Charles Nesson
to hknopf, cyberprof

howard, thank you for your critique, and for asking your question about teachable moments. the case continues to be a tremendous learning experience.

what issues do you imagine that i might have won with what you would consider good defense?

[this seems to me a telling question :<) ]

and others, please do not hold back on my account

twitter me

i am aboard alchemy with fern. i am a lawyer with a laptop on my knee. i would twitter were i connected to the net but here aboard alchemy i am knot. so today i go in search of a broadband wireless card to get us connected

make it an ad and get corporate support

who can make the video, fern and eon on alchemy needing to connect. larry rivers asked a question with his art. twitter poses it again. am i blogging, am i writing a brief, am i sitting with a laptop on my knee tapping keys, i am all of these

i propose a game to be played in cyberspace.

start with an uninflected question: lay out the facts fair to both sides. how much should joel be made to pay?

let people feel the full power of the prosecution’s case right through to the verdict form and judge’s instruction to follow it.

then fill in the verdict form

joel tenenbaum’s deposition

joel tenenbaum.JPG

joel tenenbaum at the conclusion of his deposition
charlie nesson don’t know quite when, in p-town, heading out to alchemy

issue goes deep. conflict between law in federal court and law in the court of public opinion. they should be the same. the idea that the goal of making this case a focal point for national attention and debate on issues central to our thought and future with respect to copyright and the exclusive rights of copyholders in the environment of the net should not be at odds with the process of trial by jury, with media connection stifled to facilitate obtaining an unbiased jury.

We are here to defend fair sharing, peer to peer, and to create recognition of the right to create cyberspace by digitally recording it.

peer to peer sharing the essence of the open net

Hello Professor Nesson,

Your case was being discussed on slashdot and one poster brought up the
RIAA propaganda at the beginning of most films comparing downloading to
theft of cars and handbags etc. He made the point that they are tainting
the jury pool with lies and even suggested the possibility of sanctions
against them.

I don’t know if that’s realistic, but the post is here:
http://slashdot.org/comments.pl?sid=1293609&cid=28605713
I hope it helps in some way.

Regards
Rohan Walsh

Copyright laws threaten our online freedom

By Christian Engström

File-sharing occurs whenever one individual sends a file to another. The only way to even try to limit this process is to monitor all communication between ordinary people. Despite the crackdown on Napster, Kazaa and other peer-to-peer services over the past decade, the volume of file-sharing has grown exponentially. Even if the authorities closed down all other possibilities, people could still send copyrighted files as attachments to e-mails or through private networks. If people start doing that, should we give the government the right to monitor all mail and all encrypted networks? Whenever there are ways of communicating in private, they will be used to share copyrighted material. If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.


morning walk before joel’s deposition

july8-09-1.mp3

wired summarizes riaa accusations

http://www.wired.com/threatlevel/2009/07/nesson/

The labels, represented by the RIAA, on Monday cited a series of examples in which they accuse Nesson of violating court orders and privacy laws by posting audio to his blog or to the Berkman site. Among them, they include:

* In a 2008 deposition of his client, “a surreptitious recording,” that included “confidential communications between the attorneys involved in the case.”

* A January telephone conversation telephone conversation between the judge and RIAA lawyers “without the prior consent of participants.”

At no point have i been surreptitious. the issue is not “secret” recording but “unconsented.” i put the recorder on the table red light on. i responded that the phone conference with court and opposing counsel with my twenty students present was being recorded and put my objections on the digital record before turning the recorder off. Without a digital record the event is lost to cyberspace.

* The July 1 deposition of defense copyright expert John Palfrey, which Nesson was also simultaneously twittering.

* The July 2-3 deposition of defense peer-to-peer expert Johan Pouwelse, which Nesson is accused of videotaping.


The Court spoke on the issue of the recording of depositions in its June 16, 2009 Order: “The Defendant is permitted to record the remaining depositions in any manner consistent with the requirements of Fed. R. Civ. P. 30(b)(3). Fed. R. Civ. P. 30(b)(3) states that ” testimony may be recorded by audio, audiovisual, or stenographic means. RIAA was most certainly on notice that I was planning to record; that’s what our oral argument before the court and the court’s ruling was about.

We used XMeeting, which is open source Internet videoconferencing software for MAC that enables audio-visual exchange and recording. I recorded the deposition using Xmeeting’s built-in functionality. 9 gigabits for the six hours of interrogation the first day. Not sure what i managed to save from the three hours of interrogation on the second day.

Plaintiffs are mistaken when they assert in their brief that the recording of the Palfrey deposition was posted “on both [my] internet blog and the Berkman Center’s website”. The URL to which they direct the court, http://cyber.law.harvard.edu/~nesson/, is webspace I use for file storage that is neither reviewed nor endorsed by the Berkman Center; the files therein are unlinked to by any Berkman Center website. The same is true of my blog at http://blogs.law.harvard.edu/nesson, a website hosted by, but not curated, reviewed, or endorsed by the Berkman Center.

The portions of the Palfrey deposition posted on my website relate to deposition instructions and Mr. Oppenheim’s objection to my twittering. They in no way relate to what Mr. Oppenheim considers to be the substance of the case, and provide no basis whatever for imagining that the posting would taint the jury pool.