Canada Kicks Worldwide Butt on Facebook Privacy Issues

Congratulations to Canada's Privacy Commissioner, Jennifer Stoddart, and to complainant CIPPIC (Pippa Lawson and David Fewer) for kicking butt and getting Facebook to improve on a worldwide basis. See this.

Now, if only the CRTC could show such leadership on net neutrality and if Parliament could show such leadership on copyright reform, and the Competition Bureau could show such leadership on competition law re ISP and wireless issues, not to mention Ticketmaster, etc., Canada would be an even better place.

HK

UK Flip Flops into Controversy on Three Strikes

The UK government is stepping into major controversy by ignoring Lord Carter's Digital Britain recommendations, the views of former Cabinet Secretary Tom Watson, the wishes of major ISP's and risking serious consumer (i.e. voter) potential backlash by caving into recording industry demands for some sort of three strikes policy. There are allegations that Lord Mandelson insisted on this after a recent dinner with David Geffen. If this somehow becomes law, court challenges can be expected. "Human rights" are now a matter of EU jurisdiction and it is generally accepted that internet access is a human right in Europe. This especially makes sense if internet access for a entire household is lost because the activities of one member, perhaps a child. This is what "three strikes" will mean.

One is surprised that Lord Mandelson and Prime Minister Brown have not learned the lessons that have cost the French culture minister her job and created so much controversy in New Zealand.

Closer to home, becoming too friendly with the entertainment industry apparently contributed to Sam Bulte losing her seat in the 2006 election. If she had kept her seat and if the Liberals had formed the government, she might have been the Minister of Heritage.

Former Canadian Industry Minister Jim Prentice, who led the fight for Bill C-61 last year, is now Minister of the Environment. One doubts that he has pleasant memories of the reaction to and aftermath of his very one-sided bill.

HK

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.

********************

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
****************
HK

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

Woodstock, Free Love and Free Music

Now that I have your attention about "free love," the NY Times normally brilliant columnist Frank Rich has a column from yesterday on the 40th anniversary of Woodstock, which some of us of a certain age actually remember. Those of us who weren't there may well remember it better than those who were, but that's another story.

He says:

As many boomers have noted, Woodstock’s nirvana was a one-of-a-kind, one-weekend wonder anyway, not the utopia of subsequent myth. It wasn’t even meant to be free; in the chaos, the crowds overwhelmed and overran the ticket sellers. That concept of “free” — known to some adults as “theft” — persists today in the downloading of “free” music, which has decimated the recording industry far more effectively than brown acid ever did.

(emphasis added)

What Mr. Rich forgets, however, is that the Woodstock event and its subsequent ethos resulted in the heyday of big music selling Rock and Roll to countless millions of loyal fans, who bought hundreds of millions or more of fragile vinyl LPs, 45s, 8 tracks and cassettes in the 70's and 80's, and then replaced them all with expensive and not as durable as thought CDs. Now, many of these aging boomers who can figure out how to use P2P have been sued for downloading music that they have paid for several times over already, including live concert attendances in venues where tickets actually were required.

So, Mr. Rich is rich in irony on this point at least. Those kids in the mud made many millions for the record industry. Don't lay any trips on them for the fact that the record industry messed up so badly from the 90's onwards.

The rest of Mr. Rich's column is very good indeed.

And, BTW, Bill C-61 had some absurdly limited provisions that might have allowed you to transfer that ancient LP, cassette or 8 track, if you could still play it and figure out to transfer it "directly" to your iPod (I don't know if that can even be done), as long you keep the old medium and keep a copyright lawyer in full time residence to advise you on other missteps that most music loving fans would inevitably stumble into during the course of their day.

Thanks to HT Tweet ("HTweet"?) from Susan Delacourt

BTW - full disclosure - I grew up in Woodstock. Woodstock, Ontario that is. Here's the historically best known resident of Woodstock, Ont.

HK

Obama Admin Supports $1.92 million verdict for 24 Songs

One thing that has not changed in Washington - or has maybe changed but for the worse - is the Administration's support for excess in copyright policy and enforcement.

The US DOJ today filed a brief in support of the constitutionality of a $1,920,000 jury verdict for downloading and sharing 24 songs in the Jammie Thomas case. That's $80,000 per song - or more than 80,000 times actual damages. HT to Ben Sheffner, who provides the relevant links here.

All because actual damages can be "hard to quantify" and there's a need to deter.

Well, the same can be said about damage caused by drunk drivers, negligent surgeons, bad and/or dishonest lawyers, defamatory publications, etc., etc., etc.

It's time for this myth about "hard to quantify" and "need to deter" to be shattered, or a least cut down to size. Actual damages in copyright cases are no harder to quantify and perhaps easier than in countless other circumstances where there is no statutory minimum damage provision. One can begin with patents and trade-marks. This was a windfall to the US entertainment industry in 1976 and was exacerbated in 1998. Only Canada, amongst major countries, has been misguided enough to have adopted a similar regime.

In fact, the real reason why content owners fought so hard for this is because actual damages in copyright cases are often negligible. Nobody can seriously suggest that every "unauthorized" download or every counterfeit DVD correlates to one - let alone more - lost sales.

A $10 fake Rolex doesn't result the the lost sale of the $5,000 real thing. Yet, trade-mark owners have dealt with their enforement issues without the need for such a contrived and catastrophic remedy as statutory minimum damages that can take away a person's house and their abiltiy to to get an education, feed their family, etc.

We can only hope that the US Supreme Court cuts this draconian and dreadful provision down to size. And that Canada gets rid of its knock-off version of one of the worst aspects of American law at the earliest possible opportunity.

HK

HK

More on Tenenbaum's Trial

Here are a couple or recent articles on the Tenenbaum case from publications that would tend very much to be sympathetic to Joel's side.

Here's Andrew Orlowski in The Register:

Nesson has achieved something I thought was completely impossible in 2009, and that's to allow the US recording industry's lobby group to paint itself in a sympathetic light. No longer must the RIAA explain why their biggest members are not using technology to make money for the people they represent. The Boston case allowed the four major labels to justify an enforcement policy against opponents who appeared compulsively dishonest, irrational, paranoid, and with an abnormal sense of entitlement.

Nice work, Charlie.

And here's Nate Anderson in Ars Technica, (Debbie Rosenbaum is one of the HLS students and the frequent PR spokesperson for Joel):

Nesson's arguments so far haven't found much success in court. One famous example was the appellate court brief he submitted which cited no case law and referenced only a Bible verse about Solomon. It's an example that Rosenbaum brings up when we talk about the case, since it appears to reflect so badly on the Harvard Law students doing much of the work. Law students at one of the top schools in the country thought this was an appropriate appellate brief to file? Did they not even know how to cite precedent?

Rosenbaum stresses just how much work the students did on these briefs, and she says the initial drafts of this one in particular were stuffed full of case law and traditional legal reasoning. But Nesson had the final say before submission and apparently preferred the wisdom of I Kings to the past wisdom of the American court system.

"I think it's fun to test the limits of legal norms," says Rosenbaum, though she admits to being "absolutely petrified" about being disbarred over some of Nesson's actions.

(emphasis added)

Well, one thing seems clear. If Joel and his counsel wanted publicity, they sure got it. As I often tell the recording industry on the Canadian side, "be careful what you wish for."

HK

PS:

The NY Times has an article dated Auguest 11, 2009 entitled Tilting at Internet Barrier, a Stalwart Is Upended:

The $675,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.

For his part, Mr. Tenenbaum said he felt Professor Nesson did an “absolutely brilliant” job in a difficult case, and got a far smaller penalty than the maximum of $4.5 million. But, he added, “this is a bankrupting judgment, even if it’s reduced to $200,000 or increased to $2 million.”

These days, Mr. Tenenbaum said, he buys his music on iTunes.

Professor Nesson said he was counting on winning on appeal, and was preparing for a hearing to ask for a reduced penalty. While he said his filings might have lacked the formal structure of the industry lawyers’ work — he described his side as “me and my laptop” and some student helpers — they cogently argued the issues, which were “teed up beautifully for higher courts.”

High Speed Rail Train That Couldn't in Canada

Looks like I was right about high speed rail being the great stimulus package and generally great thing that never happened in Canada for IP and countless other reasons, which I blogged about here on November 30, 2008.

And here's Mike de Souza's scoop of the train that couldn't get through the politics, with HT to David Akin's tweet.

HK

PS:

Here's the recent Toronto to Ottawa Via Rail train, on fire in a swamp area. Fortunately, nobody was hurt. Frankly, this is not exactly state of the art train service.

DRM and the Demise of Textbooks?

Here's a provocative article in today's New York Times, showing that classic printed text books may be on route to extinction sooner rather than later, and there is a lot of money to be saved in this evolution:

In California, Gov. Arnold Schwarzenegger this summer announced an initiative that would replace some high school science and math texts with free, “open source” digital versions.

With California in dire straits, the governor hopes free textbooks could save hundreds of millions of dollars a year.

(emphasis added)

And that's just in California - where, as it happens, copyright ownership and "exploitation", as they call it, are considered virtually sacred.

And this is not just going to happen in K-12. The NY Times goes on:

Around the world, hundreds of universities, including M.I.T. and King Fahd University of Petroleum and Minerals in Saudi Arabia, now use and share open-source courses. Connexions, a Rice University nonprofit organization devoted to open-source learning, submitted an algebra text to California.

The better publishers will have to adapt. The less adaptable will probably resort to litigation and, in Canada, greater reliance on collective licensing - even when there's little or no basis for it. Don't except Access Copyright in Canada to go gently into the night as "open source" electronic resources in the educational and other sectors threaten their photocopy based foundation, which was never very solid anyway.

One great worry, of course, is that the promise of better and and cheaper text books and resources could be turned into an Orwellian nightmare if DRM is deployed in ways that could allow for censorship, revisionism, "memory hole" deletion, and other means of control by state or private interests. Other means could include the prevention of fair use (fair dealing in Canada), the prevention of cutting and pasting, the prevention of "read aloud" features (as Amazon has also recently done), the prevention of access to the public domain, and other excessive exercises of copyright.

The recent Kindle fiasco shows that all of this this is not only possible but probable.

This once again shows how we need protection from DRM much more than we need protection for it.

HK

Twitter Down

Twitter is down due to DOS attack.

HK

New Highs in "Joint" Authorship?

Anyone recognize this guy?

An emerging story on whether the poster on the right infringes the photo on the left - and perhaps other issues.

WSJ is on the case.

HK

Claude Majeau New Vice Chair and CEO at Copyright Board

Congratulations to Claude Majeau who has just been appointed Vice Charmain and CEO of the Copyright Board of Canada. Here's the announcement.

Claude has great experience and is extremely fair, hard working, knowledgeable and dedicated. We wish him well and are confident that he can make good things happen at the Board.

Indeed, this could be the beginning of a new and very positive era at 56 Sparks Street.

HK

Oz to Allow Parallel Importation of Books?

The Australian Government Productivity Commission has released an important report calling for lifting restrictions on parallel imports of books. Parallel imports are legitimate products that are imported from a source other than an "exclusive" national distributor.

Here's the media release and here's the Report.

The Commission found that:

By removing the restrictions, local booksellers would have the option of accessing better value books from overseas. Local publishers would have a strong incentive to make their prices more competitive and to look for greater efficiencies in their operations, the report said.

Some books have important cultural value, but the Commission found that the support to Australian authors provided by the restrictions is poorly targeted. 'One of the Commission's concerns is that consumers pay higher prices for books, regardless of their cultural significance' the Commission's Deputy Chairman, Mike Woods, said. 'A second concern is that these costs to consumers generate greater benefits for overseas authors and publishers than they do for our local writers. In effect, Australian consumers are subsidising foreign book producers.'

Any of this sound familiar? Canada has its own very complex protective sui generis regime to prevent the normal rule of "exhaustion" and to exclude parallel imports of books where there is an "exclusive" Canadian distributor. This is found in s. 27.1 of the Copyright Act and the Book Importation Regulations. This regime affects the price, availablity and access to both new and used books by Canadians.

Clearly, since this regime was put in place more than a decade ago, a lot has changed - including the advent of easy cross border e-commerce for printed books. At times, especially under certain currency conditions, there has been much debate about whether Canadians pay too much for books.

I must say that I have no strong views on this subject at the present time. Books are clearly different things than chocolate bars. I recognize that there have been strong cultural augments in the past for restrictions on the parallel importation of books into Canada.

Whether Canada's regime has accomplished its purpose and whether it works well now or should be adjusted or repealed are questions well worth pursuing by one or more of Industry Canada, Canadian Heritage and the Competition Bureau.

(HT to Jamie Love. Keep the tweets coming!)

HK

Lawyers/Lobbyists Criticize Copyright Consultations

Here is a a good sign that indicates that Ministers Clement and Moore are doing the right thing with the copyright consultation process. This is found in an article by Robert Todd in in today's Law Times.

Mr. Todd quotes two of Canada's best known copyright lawyers, who are or have recently been actively registered lobbyists for major US entertainment industry interests, namely Glen Bloom and Barry Sookman, who have come out criticizing the consultations as unnecessary. They are urging the government to get on with:

• WIPO ratification (HK suggested translation = DMCA),
  
• ISP liability (HK suggested translation = notice and takedown),
  
• "re-calibrate the balance of copyright, so that rights holders can develop economic models that create businesses out of cultural products" (HK suggested translation = maxed out DRM +TPM and anti-circumvention),
• deal with "a significant amount of unauthorized file sharing, and we need to modernize our laws to help re-calibrate the balance of copyright" (HK suggested translation = three strikes and/or law suits against individuals).

There is the usual whining about the US "Special 301 Report."

In contrast, and with a breath of fresh air, Colleen Spring Zimmerman, who has not been a registered lobbyist, calls for a look at the Copyright Board. She:

• "suggests the government’s top priorities should including tinkering with the Copyright Board of Canada, which plays a key role in setting tariffs, for example. She says the jurisdiction of the board should be reconsidered, while a broader “revamping” should also be investigated."

I agree with Ms. Zimmerman, and have written about this at some length. Things do seem to be taking even longer, and getting even more expensive for both owners and users at the Copyright Board. The trouble is that the collectives can pay for all of this with their members' money and the users invariably have many other things to worry about apart from Copyright Board hearings. This is an important issue that involves about half a billion dollars a year in economic activity.

HK

A Satire & Parody Right Needs Legislation

The memo that David Akin has unearthed to the former Minister of Industry, Jim Prentice, confirms what I have been saying - namely that a satire and parody right cannot be left to the Courts.

If we do that, we will probably not have a satire and parody right in Canada. Just because a law professor says that the Michelin decision "no longer seems to be good law" doesn't make it so and is unlikely to have much effect on a Court.

Courts don't make laws. They interpret the law. And in this case, they are sticking with the Michelin decision, for better or worse.

As for satire and parody, we need an explicit black and white amendment to bring Canada in line with the USA, France, Australia and where the UK is headed.

If anyone has a good argument against such an amendment, I'd like to hear it.

HK

PS - Quite apart from commercial common sense, freedom of expression, etc., etc., why can't Canadians have a sense of humour (yes that's the way we spell it...)? Eh?

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.