Tuesday, April 7, 2009 - The Progress & Freedom Foundation Blog

Tenebaum, Two-Card Monte, and the Sophistry of Professor Charles Nesson

The blog Copyrights and Campaigns has provided great coverage of the ongoing Tenebaum file-sharing case and the bizarre antics of Defendant Tenebaum's attorney, Professor Charles Nesson of Harvard Law School's Berkman Center for the Study of the Internet and Society.

Of course, when Professor Nesson first dragged his CyberOne students into Tenebaum, the blogosphere rang with copious cheering, praise, and fawning for this Champion-of-Potentially-Wronged-Students who was riding to the rescue of a student accused of the conduct that one sneering Harvard don once dismissed as "petty crime."

But how soon some bloggers forget. When Berkman-Center law professors last "rode to the rescue" in a copyright-infringement case involving file-sharing, the case was called Grokster. In Grokster, the Defendants had nominated themselves for a Darwin Award by refusing to let potential amici review the whole record, citing their fear of "a criminal investigation." Consequently, the Grokster Defendants could be defended only by public-interest amici willing to argue that no conduct, no matter how criminal, should ever subject the Defendants to civil liability for copyright infringement.

Naturally, all such argument were absurd. But they were made by 79 professors of intellectual-property law, including Nesson and other Berkman-Center law professors. Naturally, their arguments were repudiated--first, by the Grokster Defendants at oral argument, and then by all nine Justices of the United States Supreme Court.

So it should come as no surprise that even the blogosphere has now realized that in Tenebaum, things have become "serious funky." But more funkiness may follow. Nesson's procedural pratfalls pale when compared to the defects in the substantive arguments and defense strategy revealed in his papers and deliberate disclosures of client confidences.

Essentially, Nesson's defense focuses on a laughable fair-use defense and two counterclaims. First, Nesson claims that the statutory-damage awards authorized by every copyright act since 1790 are unconstitutional. This claim has been adequately discussed. Professor Doug Lichtman presented both sides of this claim in his excellent podcast. Copyrights and Campaigns provides other useful source materials here. I debunked similar claims here. The U.S. Department of Justice did so here. Suffice it to say, in a file-sharing case, the $750/work minimum for statutory damages can be justified by lawful goals of either compensation or deterrence.

But less attention has focused on the other prong of Nesson's counterclaims--the tort of abuse of process. A mentor of mine once called this "the tort-of-last-resort." His point was that while valid abuse-of-process claims exist, most are just desperation strategies.

Nesson's abuse-of-process claim makes his point. Apparently Nesson hopes to support this claim and his fair-use defense by calling as "expert witnesses" an array of Free-Culture-Movement luminaries. Most of these "experts" are, like Nesson, law professors so oblivious to the proper interaction of copyright law and technology that they defended--and were betrayed by--the indefensible Defendants in Grokster.

This alone is telling. Most attorneys do not offer "expert" testimony from law professors: doing so implies that a judge is really still a 1L who can only grasp the relevant law and facts if some don explains them very... slowly.... For example, Nesson's witness list includes Lawrence Lessig--an "expert" whose opinions in Internet-piracy cases have now been excluded as inadmissible tripe (Napster), and derided for their useless vacuity (mp3.com).

But then, most attorneys do not publish emails in which they and their vacuous "experts" debate how best to introduce copyright-law-sux testimony in order to secure a "jury nullification." As Lessig correctly noted, jury nullification is a nigh-impossible strategy even in a criminal case. But in a civil case, you can strike the "nigh"--particularly if the other side can oppose your every expert or question with published admissions indicating that "attacking the copyright laws in court" is a purpose of their "testimony" and a part of your trial strategy. No fair judge can or will permit that--doing so would merely ensure the inevitable reversal and disqualification on appeal.

Nevertheless, if all standards for admitting "expert" testimony are waived, then these digerati will apparently testify that enforcing copyrights is an "abuse of process" because copyright owners hope that enforcing their federal rights will undermine a "norm" of file "sharing" that would otherwise prevail among Internet users. In short, Professor Nesson seems to view Tenenbaum as the means through which he will try copyright law for obstructing his utopian vision of an Internet governed by his own "norm" of "sharing." The defects in this strategy include the following:

Laws Trump Norms: Nesson cannot establish that "sharing" was ever a "norm" among Internet users--much less among users of the piracy-machine KaZaA. Nevertheless, racial discrimination surely was a "norm" in the Civil-Rights-Era South. Was it an "abuse of process" for Thurgood Marshall and the NAACP to attempt "social engineering" by enforcing federal anti-discrimination laws against practitioners of this racist "norm"? No--it was not. Laws always trump norms, even those that actually exist.

Laws Trump Nonexistent Norms: By definition, a "norm" must be a behavior that predominates in practice--not just in utopian theory. The voluntary behaviors of users of file-sharing programs have never exemplified a "norm" of "sharing." Among users of KaZaA and similar programs, the norm was not "sharing," it was "leeching" (taking without giving). For example, one 2004 study of users of the then-structurally-similar Gnutella network showed that 85% shared no files. Leeching was thus the "norm"; sharing was ab"norm"al.

Moreover, we should all be glad that this imaginary "norm" does not yet exist. Virtually everyone--including EFF, Lessig, and Professor Fisher--concludes that uncompensated, unauthorized file-sharing cannot "scale," (i.e., become truly "normal") without seriously undermining incentives to create. Nesson purportedly wonders how to explain "fair use" to a "digital native" like his client. One must only ask, would it be fair to creators and copyright owners if everyone did what Defendant Tenebaum allegedly did? In some cases, this inquiry can become complex and its outcome can be debatable. But not here.

Laws Trump Illusory Nonexistent "Norms" Exploited for Private Gain: An alleged "norm" must be more than just a facade briefly exploited for private gain. The KaZaA file-sharing program was never about "sharing": it was merely a means to an end--commercial, for-profit copyright piracy. KaZaA was a proprietary program that used the proprietary FastTrack protocol. KaZaA's distributors used their copyrights to halt the "sharing" of spyware-free versions of their program; they disconnected all Morpheus users from their network; and they devised an elaborate plan to use ISPs as billing agents once copyright owners paid up.

In short, KaZaA's developers and distributors always intended to enforce intellectual-property rights against "sharing"--but only after they profited by "authorizing" piracy and then profited again by quashing it. Only the most utopian of academes could have imagined that KaZaA was about "sharing." Consequently, no genuine believer in "sharing" should have been using KaZaA. Nor could one "abuse process" by enforcing intellectual-property rights against "sharing" KaZaA users--that was always the plan.

Laws Trump Illusory Nonexistent Norms Exploited for Private Gain and as a Result of Mistake or Deceit: Here, Nesson-the-lawyer's daydreams are eviscerated by a most unlikely source--Nesson-the-"scholar."

For most of its sad existence, Tenebaum was consolidated with similar cases in Capitol Records, Inc. v. Alaujan. In May of 2004, this Alaujan case was graced by a neutral amicus brief filed by, yes, Professor Charles Nesson and four other scholars from Harvard Law School's Berkman Center for the Study of the Internet and Society.

In this brief, Nesson-the-scholar professed that he and other neutral Berkman scholars were intervening "to raise and address the most significant, factual, procedural and substantive issues that are relevant to this action" in order to "help the Court strike a fair balance among legitimate and often competing interests in this matter--upholding the valid rights of Plaintiffs as copyright holders, the due process and substantive protections of the Defendants, and the promotion of judicial efficiency...." Naturally, Nesson-the-scholar ranked none of the claims of Nesson-the-lawyer among the "most significant... substantive issues... relevant to this action."

For example, Nesson-the-scholar backhanded the fair-use defenses asserted by Nesson-the-lawyer. Nesson-the-scholar concluded that downloading is almost always a "commercial" use: "Where this Court can make the factual determination that Defendants either deleted the MP3 files after sampling them, or created the MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased, this court can also make the legal determination that such uses are noncommercial." He wholly dismissed all fair-use arguments relating to uploading: "As a general matter, the fair-use arguments that might be deployed to justify uploading are very weak."

Instead, Nesson and the other Berkman amici made other speculative or strained arguments through which they wove one point repeatedly. They argued that the Alaujan/Tenebaum Court just must realize that very few KaZaA users actually intended to "share" any files. Here are two claims of Nesson-the-scholar:

"The varying sources of instructions on disabling file sharing and the inconsistencies among them demonstrate that it can be extremely difficult for a non-expert computer user to shut down their file-sharing capability."

"'[M]any people are unaware, that if file-sharing is on when they download a music or movie file, they automatically turn their computer into a server, providing those files to others across the Internet.'"

Similar claims can be found in Nesson's brief at pp. 5-6, 8, 8, 9, 10, 10-11, 11, 11-12, 12, 44, 45, 49. Nesson-the-scholar thus concluded that "only the most sophisticated" KaZaA users actually "share" any files intentionally. In short, in May of 2004, Nesson was arguing that distributors of file-sharing programs were duping, i.e., "inducing," users of their programs into sharing files inadvertently.

Of course, in May of 2004, Nesson's claims about program distributors duping users probably seemed like an oh-so-witty means to obstruct copyright enforcement by causing the Alaujan Court to deny joinder. But as of about six weeks later, and thus, in Grokster, such claims could have simplified copyright enforcement by showing that distributors were intentionally inducing users of their program to infringe copyrights.

Perhaps not coincidentally, in Grokster, Nesson-the-scholar thus forgot all about those poor deceived Grokster users, (Grokster was a branded version of KaZaA), and snidely dismissed the predominant uses of such programs as "porn and petty crime." Fortunately, others alerted the Court to Nesson's darn-those-petty-criminal-students hypocrisy. Nevertheless, in Grokster, Nesson-the-scholar thus characterized acts like those allegedly committed by the client of Nesson-the-lawyer as "petty crime." Nice.

In short, Nesson and the other Berkman professors--while purportedly acting as disinterested scholars--seem to have been playing a little game of Two-Card Monte with the federal courts: when copyright owners sued program users, these scholars blamed the program distributors. But when copyright owners sued programs distributors, these same scholars blamed program users--suddenly echoing the let-them-sue-consumers theme that runs relentlessly through the briefs of the Grokster Defendants and their many, many, many amici.

For example, in May of 2004, the Berkman professors were claiming that deceptive "technological barriers" ensured that "whatever copying may occur may have taken place without the [KaZaA-using] defendant's involvement." A few months later, one of these same professors had reversed his story: "Technologies don't infringe copyrights; people do." In Grokster, he thus argued that program distributors should not be held liable for the intended consequences of their own acts because Congress could create a streamlined enforcement system so that copyrights could be more quickly enforced against more program users. Pick a card, any card....

And then imagine what happens to a "scholar" who engages in such conduct and then volunteers for cross examination.

Sadly, such grotesque conduct might suggest that Nesson's Alaujan claims about program developers duping users were just misleading rhetoric. But even if they were meant to be just that, they had some substance. Granted, as to then-current versions of KaZaA, they were ridiculous and histrionic. But as to many other then-popular programs, Nesson's claims were rather understated, as discussed here and here.

Nevertheless, by raising and then ignoring these very serious concerns, Nesson and the other Berkman professors mocked the name of their Center by leaving it to Congress and the USPTO to study the effect of Internet file-sharing on society. Incalculable costs and misery--measured in terms of both averted lawsuits and many serious data-breaches--could have been avoided had Professor Nesson promptly investigated the serious allegations that he raised in 2004 in Alaujan.

But now, in Tenebaum, the Alaujan claims of Nesson-the-scholar impugn both the strategy of Nesson-the-lawyer and the credibility of his client. Nesson-the-scholar argued that, ordinarily, "sharing" was not a "norm," but a result of mistake or deceit. He thus implied that Defendant Tenebaum is probably not a genuine devotee of "sharing," but a less-competent-than-most infringer concocting shiny excuses for his alleged self-interested acts.

Moreover, while their shell-game briefs in Alaujan and Grokster will ensure than any of the Berkman professors will look particularly dishonest and willfully ignorant during cross examination, similar problems will affect almost all of the Free-Cultists that Nesson might call as "experts": all have defended so many aspects and manifestations of the most blatant forms of internet piracy so inconsistently, and for so long, that none can withstand any serious scrutiny.

Consequently, Nesson's bizarre, self-contradicting claims will likely ensure that the "funkiness" in Tenebaum will continue until trial becomes a heads-I-win, tails-you-lose exercise for the Plaintiffs. Jurors who recognize the vacuous hypocrisy outlined above are unlikely to be merciful. But if enough jurors fall for it, powerful grounds for reversal upon appeal will exist. In either case, Defendant Tenebaum may end up wishing that he had taken some gentle advice once offered to persons situated much like himself:

[I]n many instances, it is likely that similarly positioned defendants have indeed violated one or more of the exclusive rights of the copyright holders, and in such situations, the most appropriate disposition for the parties may be to settle these claims expeditiously.... [W]here any single Defendant in the present case is deemed liable for infringing 11 or more different works copyrighted by any one of the Plaintiffs, the minimum award which the Court could apply would be very close to the amount that Plaintiffs have apparently offered similarly situated defendants to settle similar claims. This may seem a harsh result when the same 11 songs might now be legally downloaded at a retail cost of 88 cents each, however it should be remembered that an unknown number of copies may have been uploaded from Defendants' folders by other KaZaA users. Viewed in light of that possibility, Plaintiffs' offer may seem generous....

The author of this advice? Why, he was the neutral-scholar incarnation of Defendant Tenenbaum's own lawyer, Professor Charles Nesson.

Finally, having voiced some harsh and deserved criticism of both Professor Nesson and the Berkman Center, two points are in order.

First, I am not criticizing Professor Nesson for his pro bono representation of an unrepresented defendant accused of copyright infringement--I have provided pro bono representation to persons accused of far worse. In itself, such representation can be a service to the law, the Court, and--yes--even to the Plaintiffs, (no one would really want to try a civil case against an unrepresented defendant). So the problem is not the representation--it's the sophistry: if your game is Two-Card Monte, everyone will soon realize what you are. And then, you will be of no real use to anyone.

Second, I should note that the Berkman Center itself may be emerging from the grip of the Nessianic influences that once compromised too much of its work. For example, last year, I was impressed by Professor Palfrey's testimony about Internet filtering in China, and the responses of Chinese affiliates of U.S. internet companies. This issue raises painfully difficult questions perfectly suited to utopianism and demagoguery. But Professor Palfrey' testimony seemed frank, balanced, and pragmatic.

Therefore, even though Professor Nesson's self-gratifying utopian antics in Tenebaum represent the worst of the shell-game sophistry that I have come to expect from the Berkman Center, things may be improving. Perhaps something better than hypocritical high-kicks-for-piracy can be expected from the Berkman Center in the future.

posted by Thomas Sydnor @ 9:48 AM | China , E-commerce , IP , Innovation , Internet