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

CHARLES NESSON: I start from a presumption of liberty. Think of the founders of our nation. They assembled as people who had the liberty to create a government. They knew that historically all governments reflect their own self-interest and come over time to limit, if not destroy the collective power of the people. They believed that a government built of checks and balances would ensure protection of their (and our) liberty into the future.

One method for doing this was to provide that the government must present its case for taking away a citizen’s liberty to a jury of peers, and that the jury must unanimously agree to a general verdict of guilt as warrant for the State to take his liberty. The jury will endure as a bulwark so long as it decides the whole case — the law and the fact. When all other balances fail, the jury will remain as the last protection of liberty.

In a criminal prosecution the legislature must first pass a statute that defines a crime. The executive must then choose to enforce the statute by formally charging and proving a statutory violation. Finally the judiciary must oversee the trial of the charge to make sure the statute is constitutional and the process of proof completely legal. Thus the state”s claim to take the liberty of a citizen is presented to a jury of the people. WE the PEOPLE. The jury is us, so that our values of liberty and justice will be preserved into the future against the state.

I want to make a doctrinal point exposing the flaw in the legal argument used by the judiciary to take away the jury’s power to decide “the whole case, the law and the fact,” thereby reducing the jury’s role to that merely of factfinder. “Law” used in describing the jury’s role means justice in the sense of connection with the conscience of community. The judges who created the current doctrine of jury nullification read “law” to mean the formal law created by the State, e.g., legislation, common law, judicial precedent. In claiming for themselves in a dichotomy between judge and jury of “law” and “fact” the prerogative of authoritatively articulating such matters of legality they left the jury only with “fact” and took the jury’s justice function away.

The judges did this in the 19th century in dispute as to whether lawyers could continue the established practice of arguing unconstitutionality of statutes to the jury despite the trial judge’s ruling that the statute was constitutional. Judges decided that lawyers may not re-argue their legal rulings to the jury because it is the judge’s business, not the jury’s, to decide matters of law. But in every case, the ruling was based upon the judges power to decide constitutionality and other legal matters. It resolved the question insofar as it applied to constitutional matters, statutory interpretations and evidentiary rulings — matters of legality. But it did not address, nor did it justify, the claim that juries had no business deciding “law” in the more fundamental sense.

Even after the “legalities” have been articulated by the judge to the jury, the jury hears and must accept the interpretation of the law of the state that the judge puts upon it, the jury nonetheless retains the essential independent function and responsibility of deciding whether to apply the state’s law to the defendant before them. That is the jury’s constitutional function. That is its protective check and balance versus the state’s power to deprove a citizen of liberty. To take this funtion away diminishes, even obviates, the jury’s function as the last bulwark of liberty.

All right, that’s my ten minutes. I’d be delighted with any and all comments.

dershowitz

unknown1

marthafield

fried

noahfeldman

empiricalquestion

sandel

michelman

randy_kennedy

carol_steiker

palfrey1

unknown3-equality

jim-403

i want to thank everybody for coming here today and especially the people who were here from the beginning

eric wiseman
tom smuts
dave marglin
jon zittrain
john perry barlow
larry lessig
alex and wendy
myles berkman
fern and eric saltzman

we are here to talk about the future of the net.

my vision of the future of the net is the same as the vision i enunciated ten years ago.

cyberspace is an integrated media realm of stories told and shared by digitally connected and enabled hearts and minds.
WE are the Future of the Internet. We have good stories to live and to tell.
let us make our stories represent our values of
open code
open access
open talk
open education
let’s bridge the digital divide
let’s build the commons of the net

speaker-dimasi.mp3

From: Quinn, Katie (HOU)
Date: Tue, Feb 26, 2008 at 6:10 PM
To:  nesson at law.harvard.edu
Cc:  mharding at law.harvard.edu

Good Afternoon Professor Nesson,
When we last spoke I had promised to send you dates that work for a luncheon with Speaker DiMasi. I apologize for the delay in my response. I do have an opening ion Friday, March 14 at 1pm. Please advise if that time works for you.
Sincerely,
Katie

Katie Quinn
Special Assistant to the Speaker
Office of Speaker Salvatore F. DiMasi
Massachusetts House of Representatives
Room 356, State House
Boston, MA 02133
(617) 722-2500

———-
From: Charles Nesson
Date: Wed, Feb 27, 2008 at 1:30 PM
To: “Quinn, Katie (HOU)”

yes, thank you. shall i appear at his office at that time.
–
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: Charles Nesson
Date: Wed, Feb 27, 2008 at 1:35 PM
To: Jonathan Cohen

fyi
———-
From: Quinn, Katie (HOU)
Date: Wed, Feb 27, 2008 at 1:40 PM
To: Charles Nesson

I will be in touch with you the week before with a location.
Regards
Katie

From: Charles Nesson [mailto:nesson@gmail.com]
Sent: Wednesday, February 27, 2008 12:31 PM
To: Quinn, Katie (HOU)
Subject: Re: Lunch with Speaker DiMasi

———-
From: Charles Nesson
Date: Thu, Mar 13, 2008 at 11:30 AM
To: “Quinn, Katie (HOU)”

may i confirm
———-
From: Quinn, Katie (HOU)
Date: Thu, Mar 13, 2008 at 11:54 AM
To: Charles Nesson

Professor Nesson, I was just going to e-mail you shortly. I have to reschedule lunch tomorrow. I am looking at Friday, March 28th or Friday April 11th for lunch. Please advise if either of these days work for you. Thank you in advance.
Sincerely,
Katie Q
Sent: Thursday, March 13, 2008 11:31 AM

———-
From: Charles Nesson
Date: Thu, Mar 13, 2008 at 12:01 PM
To: “Quinn, Katie (HOU)”

too bad
i had wanted to talk with the speaker about the oped i’m expecting the globe to publish tomorrow (attached) and to brief him on the March 18 Don’t Criminalize Online Poker Rally, which i expect will bring out a lot of young people in “how crazy is that?” t-shirts. that was to be for openers.
march 28
———-
From: Charles Nesson
Date: Thu, Mar 13, 2008 at 12:02 PM
To: Joe Finder

fyi

———-
From: Charles Nesson
Date: Thu, Mar 13, 2008 at 12:04 PM
To: “Quinn, Katie (HOU)”

with attachment
:
Date: Thu, Mar 13, 2008 at 12:08 PM
To: Charles Nesson

Professor Nesson, I will put this article in front of the Speaker today and deliver the additional portion of your message. I will be in touch,
Thanks,
Katie

Sent: Thursday, March 13, 2008 12:05 PM
To: Quinn, Katie (HOU)
Subject: Lunch with Speaker DiMasi

———-
From: Charles Nesson
Date: Thu, Mar 13, 2008 at 12:16 PM
To: “Quinn, Katie (HOU)”

thank you
:
Date: Thu, Mar 27, 2008 at 6:02 AM
To: “Quinn, Katie (HOU)”

i am hoping not to be disappointed again in confirming a lunch date with speaker dimasi

i hope he will be amused and intrigued by this video

http://mackie.popcha.com/GPSTS/ShowdownE1/
–

###

patrick opened with the his casino bill
dimasi calls him on his numbers for dollars and jobs
full of bullshit made of near thin air

tune in march 28

From: Larry Tribe
Date: Mon, Feb 25, 2008 at 5:59 AM
To:  lessig at lessig08.org
Cc: jpalfrey, Elizabeth Warren , nesson, William Fisher , zittrain

Hey, Larry — What exciting news! I very much hope it works out. I’ll do what I can to support you, including coming to (and maybe co-hosting) the March 13 breakfast event for you in Cambridge. – Larry Tribe
———-
From: Charles Nesson
Date: Mon, Feb 25, 2008 at 6:22 AM
To: Larry Tribe
Cc:  lessig at lessig08.org, jpalfrey, Elizabeth Warren , William Fisher , zittrain

–
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: Larry Tribe
Date: Mon, Feb 25, 2008 at 7:08 AM
To: Charles Nesson

Charlie, this email contained no message. Did you mean to send me something?

———-
From: Charles Nesson
Date: Mon, Feb 25, 2008 at 7:58 AM
To: Larry Tribe

sorry. actually, i was thinking we should issue a press release announcing your support. i was about to ask your permission to do this and hit send instead of save by mistake. i’ve been blogging about it this morning and looking for other support. thanks for yours. the Change Congress strategy larry has adopted seems both practical and effective.

nice to see you in the square. you look fit. i hope you are well, considering all.
———-
From: Larry Tribe
Date: Mon, Feb 25, 2008 at 8:13 AM
To: Charles Nesson
Cc: Kathy McGillicuddy

Larry

———-
From: Lawrence Lessig
Date: Mon, Feb 25, 2008 at 10:10 AM
To: Charles Nesson
Cc: Larry Tribe ,  lessig at lessig08.org, jpalfrey, Elizabeth Warren , nesson, William Fisher , zittrain

Thank you Larry and Charlie,

I’m grateful to everyone for their support. As you know, I don’t shy away from losing. But choosing to lose in a way that is certain to harm the movement is not yet a disease I have.

—–
Lessig
Stanford Law School
———-

From: Larry Tribe
Date: Mon, Feb 25, 2008 at 10:53 AM
To: Lawrence Lessig , Charles Nesson
Cc: jpalfrey, Elizabeth Warren , nesson, William Fisher , zittrain

I understand and, based on your data, certainly concur. A noble impulse, though, for which I’d commend you. — Larry
———-
From: John Palfrey
Date: Mon, Feb 25, 2008 at 11:10 AM
To: Larry Tribe , Lawrence Lessig , Charles Nesson
Cc:  lessig at lessig08.org, Elizabeth Warren , “Charles Nesson @ Law” , “Terry Fisher @ Law” , Jonathan Zittrain

Seconded!

John

–
John Palfrey
e: jpalfrey @law.harvard.edu
p: 617-384-9132
w: http://blogs.law.harvard.edu/palfrey/
———-

From: Charles Nesson
Date: Mon, Feb 25, 2008 at 10:21 AM
To: Lawrence Lessig
Cc: Larry Tribe , jpalfrey, Elizabeth Warren , William Fisher , zittrain

i see your logic and respect your judgment
might you ask your would-be opponent to run on the CC Campaign
———-

From: Lawrence Lessig
Date: Mon, Feb 25, 2008 at 10:28 AM
To: Charles Nesson
Cc: Larry Tribe , Elizabeth Warren , William Fisher , zittrain

Another Member of Congress, supportive of our work, is asking that directly. It would be a logical thing for her to do, and costless, since she does not need lobbyist/PAC money to survive in the safe district in which I live.
———-

From: Charles Nesson
Date: Mon, Feb 25, 2008 at 10:25 AM
To: Jonathan Cohen

am i crazy for thinking there is a great human interest/political story in this
– lessig’s almost run for congress and formation of a Change Congress Campaign–

———-
From: Jonathan Cohen
Date: Mon, Feb 25, 2008 at 11:20 AM
To: Charles Nesson

Better story (IMO) is how Lessig’s dalliance inspired someone else, and how the open culture movement is getting behind that person or preparing to find an open seat and and a candidate elsewhere.

Jonathan R. Cohen
President
The Weiser Group
232 Madison Avenue
Suite 204
New York, NY 10016
jcohen@ weisergroup.com
Office: (646) 254-6000 ext. 12

“…there is one striking feature of Grant’s orders: no matter how hurriedly
he may write them on the field, no one ever has the slightest doubt as to
their meaning, or even has to read them over a second time to understand them.”

–
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.

all respect to ethan zuckerman
he lives his hope in action

action

we need press releases of support events to impel larry lessig along his journey to the united states congress

we support his Change Congress CC campaign.

we support not just larry lessig’s election but his three-point Change Congress CC Campaign,
which means moving it onto the agenda in our own district and conceptualizing it as a national and internationally supported campaign.

Feb 18
From CyberOne Wiki

colvin is right, and brilliant, schools train the kids to beat the cops to get out of an authority structure that makes them feel bored and stupid.

i want presbelewski and colvin to be teachers in my school.

i want kids to watch the wire with me and then come back and go over and say where the mistake was made and what was the other choice.

i want to convey how much i want to teach

google hypothetical: future of university
mission of university
position of the assn of internet university service providers
bye bye to copyright on transactional base
open the university with a presidential poker game, all proceeds for running the open school

strategic thinking expressed in action
make your play according to assessment of position and strength of other players in your game

for an inmate in prison there are two laws, authority law and inmate law, authority imposed from the force outside that makes the prison, authority from the force within that rules the force of resistance. the stronger the compression the deeper the evil. how to teach and how to learn how to lighten up.

in baltimore two laws. colvin and prez offer strategy to change the valence of the game

think in media terms. hollywood, listen up. let me use your product in open education. me and prez teach math. a new kind of school. embrace parents and love their children. follow colvin down the path of enlightenment to the point of hope in kids. catch the light and keep it burning.

i want to show the wire in kingston prison, and talk about it. i want to show it in juvenile.

==feb 24==
ready for a rush
larry gives me great idea and contact with lauren
palfrey for berkman and perhaps for harvard law
juan carlos for nexa
larry and lauren for stanford

internet & society
can we have your support

first question at google gathering
identity of avatars
behind each a student expressing truth

Crimson Poker
click here

my-name-is-charlie-nesson.mp3

Charlie-Bunson-Plays-Poker

60645302.mp3

remix poetry
= (another mix)

Chippy the Poker Chip

VOTE

vin-naryanhan-testimony.mp3