My Response to Prof. Charles Nesson re Tenenbaum

Concerning the Tenenbaum case, Prof. Nesson of Harvard, who led Joel’s defense, has asked me on a closed academic list, on his blog, and on my blog “on what issue might I have prevailed had I offered what you imagine to be a good defense?”

Here’s my response.

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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.

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.

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.”

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.

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

• 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.” 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).

Best regards,

Howard
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HK

PS: August 25, 2009: PS - Prof. Nesson's comments on the above are on his blog here.

The Tenenbaum Case: A Court Room is Not a Class Room

A while back, I suggested that:

If Joel somehow wins, the RIAA has a big problem.

If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.

If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.

If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

(emphasis added)

Ben Sheffner, who has covered this trial really well despite his admitted sympathy for the RIAA’s position, agreed with me.

A jury in the Federal Court in Boston on July 31, 2009 found Joel Tenenbaum liable for $675,000 for willfully downloading and distributing 30 songs. That’s $22,500 for each song. That's my third bullet.

According to Ben Sheffner's, Joel has said if that $675,000 stands, he will be filing for bankruptcy.

I wonder whether anyone on the Harvard Joel Fights Back team has told Joel that bankruptcy may not discharge a debt for "willful" infringement under US law.

I wonder what other advice Joel was given by the legal team led by Prof. Charles (“Billion Dollar Charlie”) Nesson, the famous evidence and cyberlaw professor at Harvard Law School(“HLS”) and the enthusiastic Berkman Center law students and some veteran Boston practitioners.

There are going to be a lot of questions as to why Joel didn't settle at the outset for a few thousand dollars, and whether he was later well served by the controversial strategy and behaviour of Prof. Nesson. What convinced Joel to take such an enormous risk?

It's not clear from all the tweet and blog reports that there was much if any evidence led by Nesson or elicited on cross examination that could have helped Joel with respect to such obvious issues as:

• A fair use defense, however unlikely it would have been to succeed. In fact, the defense was thrown out by the Judge before the trial because of a complete lack of evidence that might have somehow supported it. Prof. Oberholzer-Gee, also at Harvard, was the obvious expert witness who might have helped Joel on this front. His study is or ought to be known to everyone familiar with the P2P debate. If fair use was the Hail Mary pass that Prof. Nesson was counting on, he was told by Lessig, Fisher, Seltzer etc. etc. that it was a loser of an argument. Nesson notoriously published many of the emails from his colleagues confirming that the argument was hopeless. Although he persisted with it, he marshalled no relevant evidence in the Judge’s mind even to give it a chance of getting heard. Apparently, no attempt was made to use Oberholzer-Gee until about a week before the trial, which was least three months too late. If Oberholzer-Gee was not available, there were others (i.e. Andersen/Frenz 2008) who could have countered Stan Liebowitz - the able economist and very experienced expert witness called by the RIAA.

• A constitutional argument about statutory minimum damages that range from $750 to $150,000 per work for much less than a dollar’s worth of actual damage. Again, Oberholzer-Gee might also have been useful here to argue that P2P sharing does no overall harm to the music industry; and,

• Whether there was any actual distribution of each of the songs to anyone other than the Media Sentry investigator.

Instead, Nesson made great efforts to call his son-in-law, Wayne Marshall, an ethnomusicologist, to give expert testimony about the cultural aspects of how and why music is “shared” and John Palfrey about “digital natives.” The Court correctly and predictably concluded that none of this was relevant.

Nesson opened Joel’s case with a lecture about the Necker cube and how things can be ambiguous and not as they seem. He also crushed some styrofoam, to show how albums have become “bits.” This is probably very entertaining in a class room.

Morever, Nesson disobeyed the Judge’s orders about recording depositions, phone calls, etc. There are show cause proceedings pending that could result in sanctions against him and/or his hapless client. Hopefully, Joel at least will be spared this last further misery.

Nesson asked the jurors if they would mind if he wore a turtleneck to court, and presumably did so. In Canada, lawyers wear robes at trials. I must say that this a one tradition worth keeping, for obvious reasons. (Especially as one who still has a full head of mostly black hair, I am glad that we at least don’t have wigs in Canada).

Nesson apparently didn’t realize until just before trial that Joel was on the hook for 30 songs and not just seven. He admitted that he “missed” that point. At what turned out to be $22,500 per song, it’s a significant point.

At the conclusion of the Defendant’s very short case, Nesson reportedly used his son-in-law to provide a computer demonstration about how to buy a song on Amazon, though the purpose of this seems quite unclear.

Reportedly, throughout the trial, Nesson drew many rebukes from the Judge and some objections were even anticipated and sustained by the Judge before they were made.

Finally, in closing arguments, Nesson reportedly made a blatant and apparently improper attempt at jury nullification, which was stopped by the Judge.

Above all, Nesson seemed obsessed with getting this trial webcast and went so far as to file one or two hopeless petitions in the US Supreme Court (it’s a bit confusing, since one didn’t actually get filed) to stay the trial pending resolution of this issue. Given the way things turned out, it’s probably just as well that nobody got to see this week of failure for Joel and the clearly shattered defense strategy that depended entirely on a far fetched theory of fair use, Necker cubes, and crumbled styrofoam.

Not having taught at Harvard, I’m perhaps not qualified to give Prof. Nesson a lesson. But, as any practising lawyer knows, a court room is not a class room.

Given the litany of problems in the defense of Tenenbaum, the result is hardly a surprise. However, given the stature of Prof. Nesson, HLS, and the Berkman Center, the nature of the defense was very surprising. Nor is it surprising that HLS has been apparently been taking actions that might suggest that it is trying hard to distance itself from this as the outcome was becoming apparent.

The award of $22,500 for each of 30 songs is interesting. The amount of $22,500 happens to be precisely the amount that the minimum of $750 per song times 30 songs would yield. Is it just possible that the jury screwed up in filling out the form and meant to award a total of $22,500, the minimum possible amount given the directed verdict on liability? Not likely - but some are wondering. It’s an odd coincidence. Ben Sheffner claims that this is not possible.

The award of $675,000 is a high enough award to make the RIAA look bad, especially if it actually tries to enforce it. Nonetheless, the award it is in a range that is conceivably enforceable, even it leaves 25 year old Tenenbaum financially crippled for decades and even the rest of his life. But it may not be sufficiently large and the apparently sparse evidentiary record left by Nesson on the constitutional issue may not be sufficiently adequate to sustain a finding of unconstitutionality of the statutory damage provisions or to attract the attention of the US Supreme Court on a constitutional basis.

This is a very sad moment for Joel, his family and those doubtless bright and idealistic students at HLS’s famed Berkman Center who tried to help him. This was not a good day for HLS, to put it mildly. Even if HLS has no legal responsibility to make Joel whole, HLS’s good name is going to be attached to this trial in the public perception. A lot of lawyers and academics too have been quite concerned about how Joel’s defense was handled - most notably Ray Beckerman.

As for Prof. Nesson, he would be consistent with his previous strategy of being “open”, if he would now explain just what his strategy was and what he thinks can now be done to make Joel whole.

In fairness to Nesson, it must be said that it’s not clear that this was ever a winnable case under American law. But that said, why then go to trial and take such a obvious risk of hundreds of thousands or more against long odds to save a few thousand? The only realistic hope was and remains a finding that the statutory minimum damage provisions are unconstitutional. But that’s also a real gamble and the odds were and remain heavily against Joel. Even that argument requires a sufficient record of evidence - which may or may not be there. Nesson, who is reportedly a brilliant poker afficionado, and who advocates its use in teaching law (here he is on Colbert) played out the cards here. But is was his client, Joel, who lost. Big time.

No doubt there will be an appeal. Perhaps there will be a new trial, if only because the Judge ruled that Joel’s admission of liability had to result in a directed verdict on that issue. Arguably, Joel could admit to downloading but not to liability, which is a legal conclusion. Frankly, however, it doesn’t look as if this jury would have spared Joel on liability even if they were given that issue to decide.

Ironically, at the end of the day, Joel might have been better off with the maximum $4.5 million award. Such an maxed out award might have been useful in helping to get the attention of the US Supreme Court.

The fear is that this case will be remembered for the fact that a typical middle class college kid, one of many millions, who loved popular music and downloaded and (supposedly) shared hundreds of songs and who had one of the most famous law professor/lawyers in the USA, a veteran Boston law firm, and a team of brilliant Harvard students behind him still couldn’t beat the RIAA.

This may discourage others with better cases, better strategies and more pragmatic counsel from pursuing winnable cases and making a lack of distriubtion, constitutional and maybe even conceivably a fair use argument based upon a solid record.

The lesson for Canada is to get rid of these dreadful draconian statutory damages that can and will be used against ordinary individuals for ordinary activity. Such laws and the way they are exploited by the RIAA and were attempted be exploited by CRIA in Canada do not promote respect for copyright. They do exactly the opposite.

The result from the Tenenbaum trial is that that everyone lost.

HK

PS - August 23, 2009 - I've posted my response to Prof. Nesson's comment below here.

Curiouser and Seriouser for Tenenbaum

As blogged by both Beckerman and Sheffner, the District Court in Boston is poised to sanction Joel Tenenbaum and/or his famous lawyer, Harvard Prof. Charlie Nesson:

Judge Nancy Gertner: Electronic ORDER entered; "The Court is deeply concerned that the Defendant has violated the Court's June 16, 2009 Order [850] as well as the Court's oral order at the June 26, 2009 hearing. Both orders made clear that deposition recordings, while permitted within the terms of Rule 30(b)(3), were not to be made public via the internet. Indeed, at the hearing, the Court said that "recording" the upcoming deposition did not mean "posting it on the internet," to which Mr. Nesson replied, "Okay. Thank you." Although Mr. Nesson did not object to the order, seek to clarify it, or raise any issue with respect to either the fact of the order or its breadth, he nevertheless made portions of the Palfrey deposition available to the public on the Berkman Center website. See http://cyber.law.harvard.edu/~nesson/palfrey%20_deposition01.mp3 (last visited July 7, 2009); http://cyber.law.harvard.edu/~nesson/after_my_tweet.mp3 (last visited July 7, 2009). As a result, the Defendant is hereby ORDERED to SHOW CAUSE, by July 9, 2009, why he or his counsel should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case." (Gaudet, Jennifer) [link to June 16 order added by C&C; URLs re .mp3s were in original]

This stems from Prof. Nesson's apparent proclivity for posting things he shouldn't to the internet in contravention of apparently clear court orders.

Here's Nesson's position.

Even though it hardly seems possible, the Tenenbaum saga keeps getting curiouser and curiouser.

Perhaps unfortunately for Joel, it is also getting seriouser and seriouser.

Sanctions are not a tea party.

HK

Obama Admin Supports Statutory Damages

(Photo: Gray Whale Succumbs to Exxon Valdez Oil Spill, Latoucha Island, Alaska (John Gaps III / AP)

As expected, though not as all had hoped, the Obama DOJ has weighed in on the side of supporting the constitutionality of statutory damages in the case of alleged downloaders and file sharers. Here's the CNET story by Declan McCullagh who does a great job of neutral and informed reporting on these things. Here's the view and plenty of links from the battling bloggers, Ray Beckerman (who has sought to file an amicus brief) and Ben Sheffner.

Here's the DOJ brief. While it's thoughtful and thorough in some respects, the very fact that is was even filed is bound to raise eyebrows. Two of the top officials in the DOJ appointed by Obama were formerly top private sector lawyers for the RIAA. Even if they had no dealings with the present filing, which I would hope and assume is the case, their former activities are are bound to be raised and have already been raised in the foregoing links.

One case that nobody seems to want to touch is last year's SCOTUS decision re Exxon Valdez, wherein punitive common law damages (NOT statutory minimum damages) were capped one to one with compensatory damages. Many thought that this was much too low under the circumstances (see above). Ironically, tomorrow is the 20th anniversary of the disaster. Here's the Exxon Valdez decision. Note the obiter dicta discussion at p. 38-39, which refers to treble damages in patent cases - and notes that the purpose of such damages is to encourage private enforcement.

In the Tenenbaum case, if one assumes that SONY's actual loss is some portion (say half) of the 70 cents it would have received from a $0.99 iTunes download, the $750 minimum under the statute is more than 2,000 times its actual loss for a lost sale to the defendant, assuming a lost sale. As to imputed value from "sharing", assuming that the case can be made out, there is probably no proof that there was any sharing with anyone other than the RIAA investigator. Should Joel be the lightning rod for millions of others? What level of minimum damages is necessary to encourage private enforcement, without crossing over into the criminal or otherwise unconstitutional realm, especially when millions of non-commercial individuals may be engaged in thousands of "infringing" acts each? While computers were not unknown in 1976 when these provisions were passed, these were then mainframe and other large scale computers not available to ordinary people. The concept of the internet, the celestial jukebox, and the possibility of litigation against thousands of individuals who have no commercial intent surely was not in Congress's mind even when it upped the ante to $150,000 per work from $100,000 in 1999 for those who "willfully" infringe, whatever that means. The amounts have gone up since 1976 but the concept hasn't changed from the mainframe days.

Here's a useful debate moderated by Doug Lichtman in which Charlie Nesson attempts to respond to Lichtman's pointed questions. The best comment is probably by Prof, Sharkey at about the 50 minutes mark.

HK

Nesson's Apology

In the increasingly stranger than fiction case of Sony v. Tenenbaum, Harvard Professor Charlie Nesson has filed a Notice to "apologize" for not withdrawing his motion to compel deposition of the ubiquitous Matthew Oppenheim.

Here's Ray Beckerman's comment.

HK

SONY v. Tenenbaum - Setback for Defendant

Judge Gertner has not only denied a defendant's "Motion to Compel the Deposition of Matthew Oppenheim" - a ubiquitous RIAA lawyer whose role is apparently unclear to some.

She has gone on to say:

While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation -- a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise. The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs' time and money or scarce judicial resources by filing frivolous motions in the future.

Ouch!

HT to Ray Beckerman.

HK