Why Lawyers are Scorned

This is simply breath-taking:

Wholesale copying of music on P2P networks is fair use. Statutory damages can’t be applied to P2P users. File-swapping results in no provable harm to rightsholders.

These are just some of the assertions that Harvard Law professor Charles Nesson made last week in his defense of accused file-swapper Joel Tenenbaum.

Nesson founded the Harvard Berkman Center for Internet & Society.

If he made this argument with a straight face, I predict a world-wide botox shortage.

There’s more:

Is Harvard Law professor Charlie Nesson crazy? As Nesson himself admits, “this does seem to be a question on many people’s minds.”

It’s not on my mind, nor on the minds of the students who serve as co-counsel:

The discomfort with strategy extends even to Nesson’s own students, who are doing much of the research and writing. Ray Bilderback, who is writing the “disclosures” about expert witness testimony, wrote that “all of this looks very bad from my perspective. I think that introducing our experts at this late stage to the very novel argument that we intend to raise at trial—an argument which has no real basis in case law or moderate academic scholarship—is a blunder that could have very serious consequences. At this point, I have no idea what our disclosures will look like. And they have to be filed TOMORROW. Bad, bad, bad. We should have been working on this for weeks rather than days.”

Read the whole thing, it’s even crazier than you think. Before it’s all over I expect to see Nesson invoking John Perry Barlow.

UPDATE: Here’s some more from The Register.

12 thoughts on “Why Lawyers are Scorned”

  1. Now, be careful. Given the situation of:

    “This little paraphrase by a journalist of a smart law professor’s legal strategy does not make sense to me”, then, among the possibilities of:

    1) The journalist didn’t do it justice (pun unintended)

    2) The strategy is hard to understand

    3) The supposedly smart law professor must be really be an idiot

    I would say #3 by far is the least justified reaction (though the one which is the most favored for blogging …)

  2. Come on, Seth, all the news reports say the same thing, and even Lessig says Nesson’s argument was loopy. Lessig should know a loopy argument when he sees one, having made so many himself.

  3. Lessig didn’t say Nesson’s argument was “loopy”, with the connotation of insanity.

    As I sometimes point out, if one is only going to make conventional arguments that powerful interests find agreeable, that doesn’t leave much room for reform.

    Again, it would be one thing to say he’s trying to do X, it has long odds of succeeding, it’ll probably fail. It’s really quite another to assume something like this has no understandable strategy behind it, or to use an all-purpose unfalsifiable explanation (hypothetically, he wants attention, or he’s lost his marbles).

  4. From Ars: ‘Is Harvard Law professor Charlie Nesson crazy? As Nesson himself admits, “this does seem to be a question on many people’s minds.”‘

    There’s no whitewashing it Seth, the prof has lost his marbles.

  5. Seth: “The supposedly smart law professor must be really be an idiot – I would say #3 by far is the least justified reaction”

    That’s a subset, and you leave out some interesting options:

    There’s #4: Nesson may be making a rational calculation that the increased exposure to Berkman and Harvard, which results in a higher profile, is worth a few disparaging comments by bloggers. He’s suddenly a hero to far more bloggers than are critical – check out Digg and the Torrent sites. He’s socking it The Man. So it’s a net publicity win.

    And/or #5: Nesson: “It’s like a reality show that we can all be participants in as we go along… It’s an incredibly powerful expansion of the idea of teaching.”

    In other words it’s fun, and what the hell? When you have been tenured for forty years, you don’t really care what people think.

    http://www.theregister.co.uk/2009/04/03/charlie_nesson_radiohead_goof/

  6. Andrew, this is not the sort of case that Berkman or especially Harvard needs for publicity. There’s no money in it. They don’t need Digg traffic.

    Exactly, though – “When you have been tenured for forty years, you don’t really care what people think.” But that’s different from madness with no method.

  7. But Nesson evidently “needs” this case, otherwise he wouldn’t have decided to take it on. It’s equally evident that he doesn’t expect to win, and doesn’t think losing the case is a disaster. (It’s a “teaching experiment”!)

    It’s a high profile vehicle for spreading for his Utopian beliefs. Have a read of the court documents to get a flavour of the grand-standing. It’s show business – you understimate the cynicism here.

  8. Richard: Yes, I’ve seen his blog. He’s the epitome of the I-got-nothing-to-prove guy, which is a model very dangerous for people not having his superprivileged status (i.e. almost all of us). But there’s a big difference between that attitude, and dementia.

    Andrew: No, he actually believes in the case. My point is that he NEEDS nothing in this stage of his career, so he can do whatever he wants. That makes him unconventional, maybe even a less than optimal lawyer from a strictly strategic standpoint – but it doesn’t make him deranged.

  9. “maybe even a less than optimal lawyer from a strictly strategic standpoint”

    You’ve spurned a promising career in public relations 😉

  10. I don’t think Nesson is crazy, very unreasonable but not crazy. He’s simply trying to redefine what most of us see as stealing as “fair”. I think a lot of the freetards actually believes what Nesson believes deep down in their hearts, but they don’t think he’s making a practical argument. Nesson is at least honest and fairly straightforward about his goal of eliminating any form of intellectual property. Of course, any civilized society would just ignore someone like this, but it’s difficult to do when you have the might of Harvard behind him.

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