Nesson Blog 3 30 09

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fern :<)
Published March 30th, 2009 RIAA , american jury , berkmania , family , lessig , rhetorical space 0 Comments
you may be wrong but you are dug in

here’s the audio of fern twittering into my life
http://blogs.law.harvard.edu/nesson/ 3/30/2009
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Forwarded conversation
Subject: xox
————————
From: Charles Nesson

Date: Mon, Mar 30, 2009 at 6:32 AM
To: Fern Nesson
march 29, 2009

sub base mix
fern is scared for me
she sees me confronted once again seemingly by the wall of authority
lessig dismisses me
terry fisher duking it out with me
the master of advanced ip
and wendy selter weighing in with her discomfort
at the idea that fair use should be something kids can understand
should be a principle that parents can teach
the argument for fair use from joel’s point of view

from the point of view of kid s growing up trying to figure out how the world works, how the
digital world works, how the real world works, both, a principle they can understand
or do we only need to teach them that power counts, lw power, lobbying power, litigating power
the best of the army of advocates that argues for fair use admit they can find no principle a kid
could understand
it seems to be in the nature of expertize to take an adult point of view but on this issue in
particular it is the viewpoint of the kids that should count, unless we think the lesson that they
most need to learn is response to threat, response to power.
locked in the bars of a copyright prison and

forced by a three strike rule administered by your isp or by your university
sony is our bible

the burden of proof on the copyright holder
the burden of proof
terry fisher says i’m not crazy

thank you terry
this does seem to be a question on many peoples minds
so yes, one can see in the battle of credibility terry take a step back
now larry
he said a thousand times
so if he said this he must know the answer
unless he’s saying that what he says is true across the board
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no case in which the downloading of music for personal enjoyment would be considered fair
fair in what context
fair in the balance between the power of copyright and the power of people
little people
all the way down to sasha and max, nico and charlie
okay, think along in law

we are asking law to take the user’s point of view
we are asserting that the leaders of the law in the opinions of the supreme court as opposed to , in
opposition to many opinions coming up from below
and yes, it comes directly together with nullification. the premise of fair use as an instrument in
law is that you can speak directly to the jury
what is the fairness of imposing copyright on children from the child’s point of view
zittrain is to describe the future of an extended copyright world
brian message to extend the vision of a future for music in the digital world with a different
assumption about sharing
i would like to share our debate with the court and the existing world. it is a debate we should be
having. so far the folks who speak for children have not adequately represented them
feel myself move into dangerous territory in playing with the form of communication with the
court and with my opponents. feel the wisdom of consulting closely with matt.
fear knot my love

:<)
———-
From: Fern Nesson
To: nesson at law.harvard.edu
sounds great. i like where you’re going.
–
——
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.
Subject: Re: expert reports+
————————

Date: Sun, Mar 29, 2009 at 7:45 AM
To: Lawrence Lessig , Jonathan Zittrain , John Perry Barlow , Wendy Seltzer , John Palfrey ,
William Fisher , Johan Pouwelse , Barton Beebe
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Cc: “riaa-clinical@eon.law.harvard.edu”
leave all cv type stuff to my students

please be extremely succinct, my opinion is …. the basis of my opinion is …. signature
———-
From: William Fisher
Cc: Lawrence Lessig , Jonathan Zittrain , John Perry Barlow , Wendy Seltzer , John Palfrey ,
Johan Pouwelse , Barton Beebe , “riaa-clinical@eon.law.harvard.edu”
Charlie,
As we discussed when you first asked me to appear as an expert witness in this case, my view is
that neither civil suits against individual downloaders nor secondary-liability suits against
intermediaries will solve the crisis in the entertainment industry. The best solution to the crisis,
rather, is some variant of the blanket licensing system that I, Neil Netanel, and the EFF have been
advocating for some time and that now appear to be gaining some traction. I remain willing to
testify to that effect.
I cannot, however, testify that Joel’s activity constitutes a fair use under current copyright law,
because I don’t think it does. Thus, I’m worried by your statement that “our case is fair use.” I fear
that what I have to say will not contribute to that assertion. Moreover, I will be subject to cross
examination, in which I will have to say the opposite.
Suggestions?
Terry
———-
To: William Fisher
would you agree that joel’s use was noncommercial, for purposes of fair use analysis
–
——
———-
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Yes (although, as you know, similar behavior was found to be commercial in the Napster case).
But that’s not the end of fair-use analysis. The facts that his behavior was not
“transformative” (even in the broadest sense of that malleable term) and served no educational or
critical function, that the recordings he copied were more creative than factual in character, that
they were copied in their entirety, and that the activity in which Joel and others are engaged has
had an adverse effect on the market for such works sufficiently serious to corrode incentives to
create or disseminate such works — all tilt in the other direction.
This is not to suggest, of course, that it’s sensible for the legal system to be set up in such a way as
to enable and encourage the RIAA to go after people like Joel. I devoted much of a book to
arguing that it’s not — and I’m happy to testify to that effect. But the fair use doctrine does not, in
my view, provide a plausible vehicle for reform.
In my view, the fair use doctrine has other, important functions in the copyright scheme — above
all, creating greater room for semiotic democracy — which would be impaired by twisting it to
address this particular problem. Even if I were inclined to change my view on this front, I could
not do so credibly, because I’ve published too much on this subject.
Terry
———-
To: William Fisher
yes
do you agree that joel has a right to a jury trial on the issue of fair use
do you agree that joel’s noncommercial status entitles him to a presumption in his favor on the
issue of fair use (despite what is apparently a factual finding in a context in which no specific user
represented)
when you set joel’s use side by side with the activity of recording a television broadcast
notwithstanding stated warnings on a vcr for later personal enjoyment where do you find
meaningful difference and thus distinction from sony in the supreme court in which fair use was
declared and a presumption of fair use in favor of noncommercial users was enuciated
would you agree that the fairness of joel’s use is an issue on which reasonable people could differ
———-
Answers below.
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I haven’t focused on this issue recently, but last I checked the answer was yes. “Fair use is a
mixed question of law and fact.” Harper & Row, 471 U.S. at 560. Either party, consequently, may
insist that the issue be decided by a jury. See A. LATMAN, THE COPYRIGHT LAW 295-97 (W.
Patry 6th ed. 1986); W. PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW 480
(1985). It is, however, typical for both parties to waive their rights to jury trials on this issue.
Are you asking whether there currently exists a presumption that noncommercial uses are fair?
No. Should there be one? Maybe — but, as I’ve suggested, that only gets you part of the way to
your conclusion. Too many other aspects of the case tilt against you on this.Strictly speaking,
Sony did not declare “a presumption of fair use in favor of noncommercial users’; rather, Sony
established a presumption against fair use with respect to commercial activities. (For what it’s
worth, that presumption has been largely eliminated by subsequent opinions, See Campbell.) The
pertinent passage from Sony is:
Thus, although every commercial use of copyrighted material is presumptively an unfair

exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial
uses are a different matter. A challenge to a noncommercial use of a copyrighted [***598] work
requires proof either that the particular use is harmful, or that if it should become widespread, it
would adversely affect the potential market for the copyrighted work. Actual present harm need
not be shown; such a requirement would leave the copyright holder with no defense against
predictable damage. Nor is it necessary to show with certainty that future harm will result. What
is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of
future harm exists. If the intended use is for commercial gain, that likelihood may be presumed.
But if it is for a noncommercial purpose, the likelihood must be demonstrated.
>
Let’s assume, plausibly, that despite the Supreme Court’s readjustment of the doctrine in
Campbell, this passage is still controlling. In Sony itself, the District Court found that there was
no evidence of impairment to a potential market — and Justice Stevens credited that finding. With
respect to P2P copying, by contrast, my view is that there has been such impairment. (Not
everyone agrees on this point, but that’s my view — which I’ve expressed in print.)
This would be a stretch, in my view. Note that all parties in the Grokster case conceded that
standard consumptive downloading of copyrighted songs through P2P networks is unlawful —
and the Supreme Court pretty clearly assumed the same. From the opinion of the court:
“Grokster and StreamCast concede the infringement in

most downloads, Brief for Respondents 10, n. 6, and it is
uncontested that they are aware that users employ their
software primarily to download copyrighted files, even if
the decentralized FastTrack and Gnutella networks fail to
reveal which files are being copied, and when. “
In the face of this passage (and others, later in the opinion), what you seem to be asking is whether
a reasonable person might disagree with the Supreme Court. That’s of course an easy question if
you mean disagree with the Supreme Court concerning what the law *ought* to be. But
concerning what the law *is*? Doubtful.
It would appear that the only plausible argument on this front is that the Grokster appellees were
wrong to concede this issue — and, had they argued that ordinary downloading was fair, the
Supreme Court might have come out differently. That’s logically possible, but a tough row to hoe.
To repeat, I’m not trying to alter your theory of this case; that’s your business. I’m just telling you
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my views on this issue. You’ve asked me to appear as an expert. Plainly, I can only testify to what
I know and believe.
Terry
———-
From: Lawrence Lessig
Date: Sun, Mar 29, 2009 at 2:23 PM
To: William Fisher
Cc: nesson at law.harvard.edu, Jonathan Zittrain , John Perry Barlow , Wendy Seltzer , John
Palfrey , Johan Pouwelse , Barton Beebe , “riaa-clinical@eon.law.harvard.edu”
I guess I’m confused by this exchange.
I am surprised if the intent is to fight this case as if what joel did was not against the law. of
course it was against the law, and you do the law too much kindness by trying to pretend (or
stretch) “fair use” excuses what he did. It doesn’t. But if you want to argue it does, then I should
think it a big mistake to include Terry on the team, or me for that matter. I have given literally
hundreds of speeches where I expressly say p2p filesharing is wrong, and kids shouldn’t do it. I
think FREE CULTURE says that more than a dozen times.
I should have thought instead this was a simple nullification case. Of course, it is practically
impossible to frame and present a nullification case. despite the framers belief that nullification
was an essential part of the jury right (at least in the context of criminal law), it has over the
centuries been emaciated. but that’s the only honest frame for joel’s case — whatever the law
requires, We, the Jury, won’t allow it.
—–
Lessig
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
650.736.0999 (vx)
650.723.8440 (fx)
Ass’t: Elaine Adolfo
———-
From: Wendy Seltzer
Cc: Lawrence Lessig , William Fisher , Jonathan Zittrain , John Perry Barlow , John Palfrey ,
Add me to those puzzled by the “fair use” arguments. I understood the

argument to be that statuory damages are inappropriate and
unconstitutional in response to personal-use copying, not that such
copying was within the bounds of existing law.
I think it would be more convincing to argue that Joel’s conduct was
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“fair” as an ethical matter than to claim that it meets the legally

established category of “fair use.”
I fear that we do damage to fair use by arguments that stretch it to

include filesharing — weakening our claims to fair use even for
un-permissioned transformations. I am much more comfortable disagreeing
with the law than claiming at this point in time that it already excuses
filesharing.
–Wendy
–
Wendy Seltzer — wendy at seltzer.org

phone: +1.914.374.0613
Visiting Professor, American University Washington College of Law
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.htm…
http://www.chillingeffects.org/
https://www.torproject.org/
———-
To: William Fisher
this is very helpful to me in clarifying the legal theory of our case. thank you.
in strategic terms i much prefer going to trial contending that joel did nothing that fairly justifies
the federal action against him rather than conceding that he is an infringer with the only question
being the amount of damages to be awarded. i recognize that the you, larry and many others
simply assume that there is no case to be made on joel’s behalf for fair use. i disagree with this, on
the following reasoning. fair use is recognized as a common law, perhaps a constitutional concept,
nor defined by but merely recognized and continued by the statute (sony, harper); that the
statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and
that the question is a jury issue (feltner).
as you say, the mass of fair use cases have been litigated jury-waived, with judges making
findings of fact. but none of these is precedential on a jury, and we are not waiving our right to
jury trial.
i’m not hung up on whether there is a presumption of fair use in joel’s favor because his use was
noncommercial. presumption or not, the issue is for the jury, and that’s enough to allow us to
present all matters relating to the fairness of joel’s use to the jury. nonetheless, i say sony
recognized that as against a noncommercial user the burden of proof in on the plaintiffs, even
though a contention of fair use on behalf of a commercial user must be advanced as an affirmative
defense with the burden of proof on the defendant.
i can’t agree that “Sony established a presumption against fair use with respect to commercial
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activities.” sony did not involve commercial activities, and the careless sony dicta that was argued
in campbell as having established a presumption against fair use with respect to commercial
activities was sharply rejected by the campbell court without saying anything about the allocation
of proof burdens in infringement claims against noncommercial users.
sony did recognize that it was the copyright holder’s burden to displace a presumption that
noncommercial use is fair:
“If the Betamax were used to make copies for a commercial or profit-making purpose, such use
would presumptively be unfair [the dicta rejected in campbell]. The contrary presumption is
appropriate here, however, because the District Court’s findings plainly establish that time-
shifting for private home use must be characterized as a noncommercial, nonprofit activity.”
“What is necessary is a showing [by the copyright holder] by a preponderance of the evidence
that some meaningful likelihood of future harm exists. If the intended use is for commercial gain,
that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be
demonstrated.”
i.e., the burden of proof is on the plaintiffs when the defendant is a noncommercial user, not on
the defendant to prove fairness. you quote this same paragraph, but “some meaningful likelihood
of future harm” refers to what the plaintiff must prove, not to who has the burden of proving.
as i say, this debate will surface in the fight over jury instructions, but one way or another we can
get to the jury on fairness, a multifaceted issue on which the full context surrounding joel’s
allegedly infringing activity took place back in 2003, including the copyright-holders’ lethary in
licensing commercial alternatives for kids to buy single songs in digital downloads; the copyright-
holders’ assumption of risk in putting their work out into an environment in which they knew it
would be easily ripped and made freely available on p2p networks; their marketing efforts which,
for kids without cash or credit cards, made the ubiquitous and known availability of their songs
for free downloading an attractive nuisance. grokster no more resolved this as a matter of law than
did sony or any other *factual* finding.
the logic of your position leads to a directed verdict or perhaps summary judgment for the
plaintiffs on the fair use issue. is that what you think will happen?
———-
To: Lawrence Lessig
Cc: Jonathan Zittrain , John Perry Barlow , Wendy Seltzer , John Palfrey , Johan Pouwelse ,
Barton Beebe , “riaa-clinical@eon.law.harvard.edu” , William Fisher
i’d be interested to have your response to the questions i put to terry. regardless, you may be right
that it will ultimately prove unwise to call either you or terry as a witness on joel’s behalf.
———-
To: Wendy Seltzer
Cc: Lawrence Lessig , Jonathan Zittrain , John Perry Barlow , John Palfrey , Johan Pouwelse ,
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Barton Beebe , “riaa-clinical@eon.law.harvard.edu” , William Fisher
see below
we are pressing all constitutional and statutory interpretation arguments in motions to dismiss to
be decided by the court. issues about the abusiveness of the riaa campaign are also at the core of
our counterclaim, the legal sufficiency of which is yet to be determined (the issue postponed until
the internet access issue is resolved). but for purposes of responding to disclosure obligations and
trial preparation at this stage we are focused just on the plaintiffs’ claims of infringement against
joel on the assumption that all other substantive motions are lost at the trial level and left for
appeal. against the unadorned infringement claim to be tried against us in the district court fair use
is our issue.
the “legally established category of fair use” is a many-factored case-by-case analysis. even terry
seems to back up to a factually disputed premise that p2p downloading has hurt the market for
music.
this fear seems short-sighted to me. at worst we will meet a ruling that we cannot get to a jury on
this issue. that’s what terry, larry and you seem to think will be the case, feltner and sony
nothwithstanding. but that’s just where you think we are now.
by contrast, if the trial judge allows the issue to go to the jury as i think she must, the message to
the industry will be that they have to convince a jury that suing a noncommercial user like joel is
fair. that is a big win for fair use regardless of outcome.
———-
Charlie,
I agree that the presumptions and burdens of proof are unlikely to control things, one way or
another. Under current doctrine, the crucial issue — to which the various presumptions and
burdens are intended to apply — is whether the defendant’s behavior, if it became widespread,
would give rise to “some meaningful likelihood of future harm” to the revenues available to
plaintiff copyright owners. My view is that it’s not credible to argue that widespread P2P
filesharing has not and will not give rise to “some meaningful likelihood of future harm” to the
revenues of the holders of copyrights in sound recordings and musical works. I take it that you
disagree? Or, more precisely, that you think the RIAA cannot prove such a “likelihood”?
Put that particular (but important) issue to one side, for a moment. The generous interpretation of
the fair use doctrine that you now seem to advocate is not crazy. As a policy matter, several
scholars have argued for greater latitude for noncommercial consumptive uses of copyrighted
material (as opposed to the “transformative uses” that are currently privileged under fair use
doctrine). Examples would include Netanel’s recent book, Copyright’s Paradox, pages 207ff; Fred
von Lohmann, “Fair Use as Innovation Policy,” 23 Berkeley Tech. L.J. 829 (2008); and Rebecca
Tushnet, “Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves
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It,” 114 Yale L.J. 535, 537, 562-86 (2004).
However:
(a) I think you need to engage more than you have as yet with the case law in this area, which is
quite hostile to your assertion that ordinary P2P filesharing is fair use. The key decisions are
Napster, Aimster, and Grokster. In answer to your question, yes, I fear that failure to address the
holdings (or dicta) of those decisions will give rise to a directed verdict or summary judgment
against you — and you will never get a chance to make your case to the jury.
(b) I happen to disagree with von Lohmann and Tushnet concerning the appropriate focus of the
fair use doctrine. Since my first essay on fair use (in 1988), I’ve been arguing for greater latitude
for transformative uses and less for consumptive uses. I still believe that’s right. The net effect is
that I can’t credibly testify in support of the position you now seem to want to take.
Terry
———-
From: David Marglin
sounds right. and then, to larry’s point, there’s always nullification. and finally, if you get close on
fair use, but they rule against you, they may yet be inclined to split the difference by making the
damages de minimis and awarding the minimal amount per infringement.
but yes, I think this is the right path, and you have a good argument. that at the end of the day, it is
for the jury (and perhaps the judge) to decide what is fair in any particular case…
djm
———-
From: Raymond Bilderbeck
Cc: lessig at pobox.com
If I can weigh in on this, I would have to agree that if the centerpiece of our case at trial is going
to be this “noncommercial fair use” argument to which you seem committed, it would be a big
mistake to call Professor Lessig to the stand. From the sliver of his work that I have read, I gather
that even if he agreed to say what we would like him to say (which seems unlikely), opposing
counsel would have a field day on cross-examination, given his extensive writings on these issues.
When writing the “draft” disclosures in light of your comments on my initial draft, I found myself
writing more from your perspective on the case than based upon anything I had gleaned from
Professor Lessig’s work. I just assumed that you knew something about Professor Lessig that I did
not. Apparently, this is not the case.
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
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be filed TOMORROW. Bad, bad, bad.
We should have been working on this for weeks rather than days.
R. >it is practically impossible to frame and present a nullification case. despite

>=== message truncated ===
———-
From: Lawrence Lessig
To: Raymond Bilderbeck
Cc: nesson at law.harvard.edu
I certainly agree that I shouldn’t testify about whether this is fair use. But I’m not sure that’s
expert testimony in any case. I am of course willing to describe the growth and reach in copyright
law.
———-
[snip]
From: Charles Nesson [mailto:nesson@gmail.com]

Sent: Sunday, March 29, 2009 3:13 PM
To: Wendy Seltzer
Cc: Lawrence Lessig; Jonathan Zittrain; John Perry Barlow; John Palfrey; Johan Pouwelse;
Barton Beebe; riaa-clinical at eon.law.harvard.edu; William Fisher
Subject: Re: expert reports+
———-
To: Lawrence Lessig
Cc: William Fisher , Jonathan Zittrain , John Perry Barlow , Wendy Seltzer , John Palfrey , Johan
Pouwelse , Barton Beebe , “riaa-clinical@eon.law.harvard.edu”
surprise
defense lawyer intends to fight case on grounds that his client didn’t do it!and easy to explain to
children
please, be my guest
fair use
explain it to my children
how are you explaining it to yoursof what law are you speaking? the law that has been extended to
gargantuan proportions by the lobbying activity you decry?yes, but i have yet to hear you explain
the principle of fair use so that a child can understand. please, be my guest. i want you as an
expert witness to give the very best explanation you can muster. and back you up with terry fisher.
think of it this way: i want to present the jury with the strongest argument for the case against joel
so the jury can see in the clearest way what a kid on the net is up against. i want you and palfrey
for bookends. palfrey looks at the argument you make from the child’s point of view.but nowhere
explains how a net dominated by the copyright giant policed by a three strike rule administered by
your friendly commercial isp or university is FREEright on. definitely to be an issue in our case. i
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am hoping to have the issue in the sjc in june
———-
To: David Marglin
Cc: “riaa-clinical@eon.law.harvard.edu”
tx
———-
To: Raymond Bilderbeck
Cc: lessig at pobox.com, Fern Nesson
do i hear panic in your voice or the beat in the underground of hunter thompson
:<)
———-
To: Lawrence Lessig
Cc: Raymond Bilderbeck
enough said
:<)
———-
To: William Fisher
this is your focus. from whose viewpoint is this question asked?
future harm to the existing business model of the copyright holder? is that the only interest to be
taken into account?
can you to explain fair use to joel so that he can understand it
thanks again, and again, i’m not meaning to push you to an opinion which is not yours, but rather
in the mode of clarifying.
are there other instances of noninfringing noncommercial nontransformative fair copying
thank you for observing that the interpretation of the fair use doctrine that i am advocating is not
crazy. thanks for the refs to netanel and von lohmann and tushnet
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- Show quoted text -
–
——
Reply
Forward
Raymond Bilderbeck
I don’t know whether I could explain the principle of fair use in a way such …
6:39 AM (3 hours ago)

Charles Nesson
are you up early or not yet to sleep

Raymond Bilderbeck
Both. No sleep for the wicked. >=== message truncated ===

Charles Nesson
to Lawrence, William, Jonathan, John, Wendy, John, Johan, Barton, riaa-clinical
show details 7:39 AM (2 hours ago)
Reply
but our case on fair use is not a nullification case. our contention to the jury and to the court is that
fairness is the law
seems to me to be an understandable principle that it’s okay to consume and share nonrivalrous
goods which are available on the net for free
if the labels have a beef against anyone it’s against the guy that rips their encrypted work into an
open mp3 and puts it up
that’s not joel
joel is a digital native looking for a principled norm of fairness to live by. fairness is the law.
TOP EVIDENCE EXAMS 2009 question 1

Published March 24th, 2009 Uncategorized 0 Comments
DIRECTIONS: This exam is a take-home exam returnable by e-mail. Include your name and
Harvard ID number; when it is completed, e-mail it to Moira Harding ( mharding at
law.harvard.edu). Your personal information will be redacted. Do NOT e-mail the exam to
Prof. Nesson. The exam is limited to 1500 words, to be allocated over the two questions in any
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way you choose. Include in the subject line to Moira a statement indicating “SHARE” or “DO
NOT SHARE”. All exams will remain anonymous.
Question 1:
*
*
The question: Of what is this evidence?
Question 2:
What is the RIAA’s best case against Joel? Engage and embrace, if you can, Joel’s strongest case.
***
8706460
This is evidence that law school may teach you what process is, but not how it is used. Or if it is
used.
This is evidence of the flexibility of judges. Evidence of the flexibility of rules.
I have embraced Vinny. I imagined a conversation between you, your students, Judge Gertner, and
Mona Lisa Vito. It was, in Judge Gertner’s words, a “moment of informality.” Is Lisa describing a
deer being shot in the woods? Or is she lecturing about this procedure? The request to record this
moment stems from your mission. It is what this case is about. It may not be something we can
learn in law school.
Evidence is what you make of it. Context can change its impact. Maybe context can change its
truth.
The attached audio file (“ ”) is further evidence.
10705096
Evidence is anything which might tend to prove the truth, or at least one version of the truth, one
perspective of the Necker Cube. So “of what” is the truth which may be proven?
Evidence of our need (or perceived need) for gold stars – for the comfort that comes from
repeatedly being told that you are the best, or at least good enough. The desire for approval from
authorities: judges, professors, teachers, parents. Do I play the game for approval? This gold star
mentality is destructive of self. The need for approval is based in anxiety, and anxiety is based in
fear. And fear is the mind killer.
Should I define the game differently, so as to find myself in it, not just as a repository of the
arguments and values of others, but as a part of my own journey? How is this game different from
other games? I spent much of this month playing poker. Lost my online poker virginity (and
$100). Why did I play? Did I play for the gold stars (dollar bills)? Did I play for the competition
(camaraderie)? Did I play for the rush that comes from making a good play, from getting inside
the mind of your opponent, fully empathizing with their position and their desires, until you know
that they will fold to your raise?
eon Page 16 of 28
This exam taking is the official game of HLS. It’s our poker, and the rules are similar. At least
how it is traditionally presented there are winners and losers. As Charlie (the lord of this particular
game) has told us, just like in poker the key to winning is empathy. But are these games worth it?
Not if the outcome is what matters. You can’t play for the gold stars, that much is clear. In poker,
you can never be sure of the outcome, so much the same for HLS exams and litigation. All you
can do is make the best moves with the cards you are dealt. Playing only for the gold stars
(money, ‘A’s, verdicts) is a waste of time. Often the verdict is only the beginning of the story (see,
e.g. “A Civil Action”).
But what about the spectators? Like all games, litigation has spectators. And since the law is about
stories and storytelling, the spectators are in some ways just as important, just as present as the
parties. Without the spectators, the law is a hollow game. The question is how the law lord (or in
this case, Judge Gertner, her agent) imagines herself. If she imagines the “story” being told in the
courtroom as tightly circumscribed by well-defined rules (see Vinny: “how do you plead, guilty or
not guilty?”), then the only spectators relevant to the game are the jury. Everyone else can be
excluded, since their interference can only harm the purity of the process. On the other hand, if
she imagines the narrative she presides over (or does the dealer deal herself a set of cards as well?)
as larger than the parties, as being part of a grander story being told by and to “We the People,”
then the more spectators there are, the better. And why shouldn’t the law lord imagine the law in
this way? After all, like all of us, part of her wants gold stars too.
20675845
Creation Story
In the beginning, the exam was without form, and void

The Narrator divides the exam into I and not-I
I thinks in a language only I understands, which is to say, no language at all
I perceives everything and nothing at once
I is an eternal moment
The Narrator teaches I identity

I understands that what is is and what is not is not
I knows this with perfect certainty
The Narrator teaches I representation

I names what is ‘the World’
The Narrator teaches I to see similarity and difference

The World is filled with variety
The Narrator gives I memory, which is to say a past and a future
The World is filled with change
Everything is susceptible to doubt
The World testifies and I believes
Everything is evidence of itself
The Narrator breathes Intention into I

The World is filled with things for which there is a use
The Narrator creates U in the image of I
eon Page 17 of 28
Together I and U create a language
The Narrator teaches I and U a game

A sign hangs in space on which a question is written: “Of What Is This Evidence?”
Above the sign is a small platform on which objects materialize
I and U take turns telling stories
I conjures a world in which the object becomes a sign
U conjures a doubt about the sign’s meaning
I seals the crack through which the doubt entered
The game continues
The Narrator sits in judgment
Exegesis
For there to be evidence, there must first be doubt. A tautology is susceptible neither to proof, nor
to doubt. Outside of the tautological everything this susceptible to doubt, but this is not the same
as saying that everything is in doubt.
We do not encounter the world in the first instance as evidence. I see a blue field. Do I conclude
that there is a blue field in front of me? Is the perception ‘evidence’ of the conclusion? As if I
thought to myself “I am having a perception of blue; in the past when I have had such perceptions,
there has been a blue object in front of me; there is most likely a blue object in front of me now.”
Such reasoning plays no role in the experience. I simply see blue. And by this, I do not mean that
the reasoning happens subconsciously—or algorithmically.
Someone says “everything in the world is evidence.” How is this to be understood? Think of a
case where there is a disputed proposition—whether a painting is a fake. Parties to the dispute
offer grounds in support or against it. This is a situation where evidence has a role to play.
Someone wants to extend this game beyond its normal limits. They say “you believe that I’m
standing in front of you, but I could be an apparition; it is only based on your past experience that
you infer my presence is the cause of what you see.” They are taking a situation where the
inferential reasoning is quite explicit and connecting it by intermediate cases to a situation where
it would normally play no role at all. They want to focus on the similarities between the cases and
ignore the differences. Yet, how different it is to doubt whether a painting is authentic and to
doubt whether my perceptions are caused by an outside world.
“Everything is susceptible to doubt and everything is evidence that points in one direction or
another.” Two possibilities: 1) they are truly in doubt; 2) they are trying to show something
interesting about the nature of evidence and the rules of the game in which the word is used—to
make us look at it from an unfamiliar perch.
Ordinarily, evidence is offered in conjunction with a hypothesis or theory. First there is a

hypothesis, then evidence is offered to support or contradict the hypothesis. Yet, the hypothesis
wasn’t plucked out of space. It was formed based on prior experience. Did the experience become
evidence only after a hypothesis was formed to explain it? Why did the experience require an
explanation in the first place? A hypothesis plays a role where there is uncertainty.
We do not call something evidence simply because it conveys information. In the case of a
proposition about which everyone agrees, there is no question of evidence. Information that fits
with our existing assumptions is not experienced as evidence. Only when an assumption is
eon Page 18 of 28
questioned does the evidence on which it rests come to the fore. Does this mean that the evidence
was there all along—latent? A broomstick is used in a game of stickball—was it really a bat all
along? To call something evidence only makes sense within the game of uncertainty and
explanation.
The purpose of an explanation is to be accepted. To say an explanation is accepted means that a

doubt has been removed, but not that every possible doubt has been removed. The level of
certainty required varies according to the circumstances. How do we know when the doubt has
been removed? To understand where explanation comes to an end is to understand the entire
culture of which it forms a part.
To call something evidence is to presuppose the existence of a question to which it suggests an

answer. In this way, evidence plays a role in the recursive process by which our understanding of
the world unfolds.
***
10706742
Of What is This Evidence?

Ought we, living underground, dare
To ask such questions of the Universe?
To search for the space that lies between?
It was not so, formerly.

There was a time for me
When I let loose my curiosity
To arch its back, and
Go into the night and see what it would find.
Never mind the consequences,
Never mind.
There were no questions, then, with answers that I fled—
No polished scales for me to dread,
But if Truth comes to us through a glass, darkly

How is it that Justice, blindfolded, is supposed to see
Through all the bullshit, all the lies, all the expert testimony?
Ought I dare
To go into the cave,
To hear the answer to the question
That I would rather not ask?
To do battle with the lawyers
Who carry their evidence jingling in their pockets?
Our ancestors searched for truth in the arena
The Evidence was—
defeating your accuser in mortal combat,
having burning coals heaped upon your head,
holding your hand in a pot of boiling water.
The Exhibits were—
your wounds, and those of your accuser:
eon Page 19 of 28
whoever God heals first wins.

But at least the sides were evenly matched.
Do I dare, then,
Climb the mountain?
Follow the arduous path
To its end?
And what is there that I,
If I reach the summit weary, bleeding, my mouth dry,
Can do if the One at the top should reply:
Truth is being at the top of the mountain
And evidence merely the journey that takes you there.
No! I am not J. Prufrock, nor was meant to be;

I am Ulysses; I am Solomon
And I mean to have my answer!
But in the Courtroom, the Prosecution tells its story

brick by brick.
It builds a wall to close me inside
or stand me up against.
And Lady Justice, blinkered, cannot see
Through the lies, through the expert testimony
To the truth, there at the top of the mountain with me
Here, underground, Evidence is but a shadow—

—a shadow that we, lambent, project
Onto the walls of Plato’s cave.
And the Truth is but the space in between.
***
90706446
These objects serve as evidence and, in context, tell the story of a man whose interpretation of the
game of life both selects and shapes his endeavors.
I will ascribe my personal interpretation of the big thoughts presented in the first object and
explain how these thoughts guide Mr. Nesson’s decision to litigate this case, raise the issue of
internet in the courtroom, and finally his accession to the Judge. In doing so, I assume ‘the
mission’ represents Mr. Nesson’s personal intuitions.
The first big thought is the importance of asking questions. The mission asserts that what is
ultimately important to us, and is ultimately driving every question we ask, is finding the answer
to what is the meaning of it all. The mission asserts that this may be impossible under the
circumstances but in my interpretation that is not of importance–what is ultimately important is
that we continue to ask these questions and that they continue to drive us forward.
The second thought is that this is best accomplished through a sharing of ideas. We learn and
define ourselves in relation to the world around us.
eon Page 20 of 28
Most importantly, I have personally found it to be true that an accurate understanding of another’s
interpretation of your contribution is essential to increase the likelihood of furthering a desired
end.
An understanding of the mission allows us to understand the importance of winning this case.
This mission carries with it the implication that we must facilitate the flow of information between
us. Cyberspace allows us to evaluate another person free from the biases created by the material
world. These biases include physical appearances and social mores that often limit an individual’s
freedom to ask those ‘silly’ questions. The anonymity associated with online interaction strips
away these distractions.
If we truly acknowledge the importance of asking these questions, then we must realize that
cyberspace furthers this end in ways we cannot yet appreciate. For example, the pursuit of truth in
science is historically riddled with successes fueled by ideas that when first proposed were
considered silly by some.
In the history of man, there have been four great advances in communication. They were speech
itself, followed by the written word, and then the printing press. The last is the internet in whose
birth and infancy we are now enveloped. The free and easy dissemination of information has
transformed the acquisition of human knowledge. A click brings enlightenment.
But with enlightenment comes empowerment and there are always those who do not want to share
power. The mission is to ensure that this great step forward not be hobbled by censorship and
commercial avarice.
The internet may truly be man’s most important creation to ask the important questions. Thus, its
freedom, from the RIAA and any other limits, is certainly the most important goal to anyone who
commits to this mission.
In my interpretation, the mission asserts that one must understand the rules of a game in order to
properly play it. In this particular game, the rules that bind Mr. Nesson are not just the Federal
Rules of Evidence as applied by the Judge, but are best defined by the subtle individual nuances
that define the Judge’s person.
Mr. Nesson adheres to these rules by introducing the idea that the internet serves important
purposes in the Judge’s mind early in the proceedings (through the introduction of the tape
recorder in the phone conversation). This play forces the Judge to consider the importance of
media to freedom in a context tangent to internet piracy. The Judge’s hand is forced early in the
case as her attitude on this matter certainly relates to the conclusion she will ultimately reach. Mr.
Nesson’s interpretation of her attitude will undoubtedly help shape the story he will tell.
Furthermore, the proposition undermines one of the RIAA’s main points: in the words of Joel
Tenenbaum, “If the RIAA’s campaign is about educating people, how could they possibly oppose
internet in the courtroom?”
Strategically, in the mind of the Judge, his decision to record before asking demonstrates his
conviction on the issue and his quick accession demonstrates his respect for the process.
Two individuals, within the context of a game, appreciating and understanding one another’s
view, is a step forward.
eon Page 21 of 28
***
10706653
The medium of a question transforms the question, and the ordered courtroom is a medium that
necessarily reduces the dimensions of a question. The Rules of Evidence, for example, attempt to
provide structure by logically defining concepts that can be understood only by the intuition.
Human beings possess an innate conscience and an ability to gauge the coherence of stories. This
ability includes an intuitive understanding of relevance and an ability to judge a witness’s
credibility. The Rules of Evidence are ambivalent about the intuitive abilities of juries. On the one
hand, the hearsay rules (along with the Confrontation Clause of the Constitution) help the court
make use of the juries’ abilities. On the other hand, the juries’ abilities strain against the Rules’
attempts to define concepts like relevance and character. This tension may be inevitable. The
Gertner recording and “The Mission” are evidence that the traditional medium of the courtroom is
insufficient for deciding multi-dimensional questions. However, the limitations of the courtroom
are essential to legal legitimacy.
The clearest indication of this thesis comes in Judge Gertner’s statement that she wishes to have
the recording turned off because she wants “to ask certain questions of the parties without the
necessity for people to come in and have a formal proceeding.” Recording, for Gertner, apparently
means accountability to rules. Rules draw out lines. The lines limit chaos; they ensure a forum for
storytelling, but these lines necessarily flatten out the forum. Gertner believes that formal lines
restrict questions — the real questions that drive us forward, as “The Mission” states. At the same
time, Judge Gertner seems to believe that a wider audience necessitates narrower constraints. The
forum must be limited in some direction, either in the freedom of the actors or in the freedom of
the information.
Limitations are necessary because they allow the words of the legal system to be judged by
standards that we can pretend are objective. “The Mission” suggests that a professor’s media are
text and speech, yet ironically undercuts this statement by adding the dimension of music. By
analogy, the traditional legal media of text and speech are insufficient for complete understanding
without the music of human tone and reaction. But the illusion of objectivity, which undergirds
the legal system’s legitimacy, depends on flattening human questions into two-dimensional text.
Technology provides the flexibility to choose which dimensions are more important, but it does
not yet remove the necessity of flattening the question.
***
80706707
11:36 a.m., Friday, Building Reality.
Blank screen = 0. Start with that. Then two linked digital audio files, 1 and 1. Then a brief
question, with few ground rules for the response. The key term, “evidence,” is undefined. As the
Exam Taker, I assert the power to lay down the missing definition: evidence is that which tends to
prove something.
So then, what do these audio files tend to prove?
Depends on whom you ask. As the Exam Taker, I will put forth a statement of what they tend to
prove. And my statement will be my version of the truth, crafted to serve my purposes (to win a
high grade). Other exam takers will provide different statements, and like the stories put forth by
opposing attorneys, these versions might spar. It is a competition; a game of skill rather than
chance.
The linked audio files are the raw material (like facts), to be manipulated by the storyteller. The
eon Page 22 of 28
Exam Taker places them in context, weaves them into a story, builds a framework around which
to understand them.
Truth the Necker Cube: the raw audio files lead to no single answer that is correct. There is only a
process designed to select the best surrogate based on the meaning attributed to it by the players
(here, the exam takers). It ultimately depends on how the Exam Grader is persuaded to see it. It is
a human process, where a human Exam Grader uses his perceptive abilities to determine the
relevance and persuasiveness of the response.
Both the trial process and the grading process deal in surrogates. The persuasiveness of the
student’s story, as relative to the persuasiveness of the other students’ stories, becomes a surrogate
for that student’s worth in the class, which is then assigned a grade.
So then, of what those files tend to prove, depends on whom you ask, and ultimately on the
sorting decisions made by the Exam Grader. Full circle.
2:05 p.m., Sunday, Story Time.

The use of different forms of media in pedagogy is expanding. Educators are finding alternative
ways to express themselves, and to illustrate their lessons, than they have traditionally used. While
the age of the printed textbook is not dead, society is increasingly experimenting with non-
traditional media to convey educational messages.
The Mission and the Conversation with Nancy are evidence of this trend. For example, when
Professor Nesson was asked a difficult question in his winter 2009 evidence class (“what is the
meaning of life?”), he responded through the telling of a story (the meaning of life is an apply), as
well as by playing The Mission audio clip. The use of an audio file containing music and
lyrics/spoken word to convey a message to a classroom of students is an alternative pedagogical
method employing non-traditional forms of media. While The Mission file itself, standing alone,
does not prove this, many students can testify to the truth of the description of the chain of events,
and other statistics could be supplied to show that playing mp3s is not a traditional teaching
method.
The Conversation with Nancy also tends to prove that at least one classroom is attempting to
employ non-traditional media to teach class lessons. The file represents an attempt by Professor
Nesson to record his conversation with Judge Gertner and plaintiffs’ lawyers, at least in part in
order to play the record in class as a non-traditional teaching tool. Again, the recording by itself
doesn’t complete the proof, but numerous students, and the Professor himself, can attest to the
planned use of the recording in this way.
These audio files tend to prove that classrooms are experimenting with new forms of pedagogy.
This is
my story. Other students may say something different – some may even contradict my version of
the events. That’s not surprising, given what I’ve said about the nature of truth, and how it
depends on one’s perception of it, and one’s use of it in a story that provides the context. Still,
Exam Grader, I’ve set out a sufficiently cohesive story for you to see it my way.
[more to come]
» radiohead - has a certain pace to it > eon >>
eon Page 23 of 28
gone
Published March 22nd, 2009 RIAA , Uncategorized , american jury , rhetorical space 0 Comments
Subject: radiohead
————————

Date: Fri, Mar 20, 2009 at 10:06 AM
To: Isaac Meister , Matthew Sanchez , Anna Volftsun , Debbie Rosenbaum
would each of you please write me an account of our meeting with brian message
my recorder malfunctioned
———-
From: Anna Volftsun
Date: Fri, Mar 20, 2009 at 10:53 AM
Professor Nesson,
I dont remember the exact details, but the gist of it was:

He talked about how the UK is moving towards an alternate model of music distribution (from
BPI, which is their version of the RIAA). This model does not involve record labels at all and
encourages, or at least allows, file-sharing. He mentioned working with an artists organization of
about 200 groups. The UK is currently soliciting reactions and opinions on its proposal to amend
the copyright laws. The matter was put to a vote in the artists organization and they almost
unanimously voted to allow file-sharing rather than have it be penalized by copyright law.
Google Blogs Alert - message gone

Published March 22nd, 2009 Uncategorized 0 Comments
» radiohead - has a certain pace to it eon

By nesson
Anita and I met with him this morning and got to talking about the efforts of Charles Nesson and
your class versus the RIAA. Brian would be very interested in meeting with Professor Nesson if
he has any availability while Brian’s in …
eon - http://blogs.law.harvard.edu/nesson/
SET to reconstitute education in Jamaica and

beyond
Published March 18th, 2009 Kevin Wallen , SET , Uncategorized , jamaica 0 Comments
eon Page 24 of 28
my welcoming speech delivered through the net at the launch of SET in Ascot Highschool,
Jamaica.
what are the rules of twitter - who is allowed

to play
he’s missing a screw

an economist you don’t want running your show
heart buried too far down in cost benefit analysis
we saw him here and lost faith in him
been workin’ too hard

haven’t been bloggin’
morning mail, i should keep you up on it

amazing stuff, really
eon Page 25 of 28
just a matter of cut paste share
here’s from ray:

[riaa-clinical] Look Out, Honey, ‘Cause I’m Using Technology
Inbox X
Reply to all
Forward
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Filter messages like this
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Why is this spam/nonspam?
Raymond Bilderbeck
to riaa-clinical
show details Mar 16 (1 day ago)
Reply
I was listening to old Genesis tunes played backwards (a definite improvement), but they still
didn’t seem to be worth $150,000 each. So for those of you who don’t yet know what this case is
really about, I’ve consolidated our seven songs and upped them for your listening displeasure.
They can be found here:
http://tinyurl.com/dfooeg
pass: hahaowow
I think the real lesson to be learned from all of this is clear. Kids, if you’re going to pirate music,
make sure you pirate GOOD music.
Hopefully no one disapproves of my brazen, willful and illegal activity. We’ll just say that it’s
part of wide-ranging discovery.
R.
[Substantial non-infringing use? I don't think so]
and here’s what i just mailed off through pacer with isaac and my clinical students a stop along the
way
please file on pacer as a notice
eon Page 26 of 28
Reply to all
Forward
Reply by chat
Filter messages like this
Print
Add to Contacts list
Delete this message
Report phishing
Report not phishing
Show original
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Show in variable width font
Message text garbled?
Why is this spam/nonspam?
Charles Nesson
to Isaac, riaa-clinical
show details 6:58 AM (7 minutes ago)
Reply
Dear Judge Gertner
I made a mistake by not withdrawing my motion to compel Matt Oppenheim’s deposition

immediately after the January 22 date had passed. I acknowledge and apologize for this, both to
you and to my opponents. I wasted the Court’s time. I take seriously the Court’s warning about
imposing sanctions. I thank you for not imposing them. I will make amends.
Yours sincerely,
Charles Nesson
For Internet & Society
Counsel for Joel Tenenbaum
——
private public thanks to doug lichtman

doug, thanks for a good fair presentation. you have started an intelligent conversation. i am
grateful to you and to all who are participating. i look forward to your further podcasts and
particularly recommend as interviewees pam samuelson, martin redish, tom colby, ben zipursky.
just signed up for a twitter account
eon Page 27 of 28
talking to one’s avatar makes sense of i and i to i and i
poker - the legal game - twitter.com/_eon_

Published February 21st, 2009 SET , poker , the wire 0 Comments
the lesson of the wire

i am pryzbylewski
david simon and prez, please come to harvard
we are teachers who want to teach poker in schools
to teach kids how the numbers work
we assert that those of you who want to hold us back are not good at numbers
eon Page 28 of 28
just knot your thing
_eon_ assignment: watch prez teach kids numbers with dice: want to play numbers with freerice:
who will do it live with jamaica: #openeducation
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eon Page 1 of 28

you may be wrong but you are dug in

From: Charles Nesson

march 29, 2009

and wendy selter weighing in with her discomfort

the argument for fair use from joel’s point of view

locked in the bars of a copyright prison and

sony is our bible

terry fisher says i’m not crazy

okay, think along in law

zittrain is to describe the future of an extended copyright world

fear knot my love

sounds great. i like where you’re going.

From: Charles Nesson

leave all cv type stuff to my students

Thus, although every commercial use of copyrighted material is presumptively an unfair

“Grokster and StreamCast concede the infringement in

I guess I’m confused by this exchange.

Ass’t: Elaine Adolfo

Add me to those puzzled by the “fair use” arguments. I understood the

I think it would be more convincing to argue that Joel’s conduct was

“fair” as an ethical matter than to claim that it meets the legally

I fear that we do damage to fair use by arguments that stretch it to

Wendy Seltzer — wendy at seltzer.org

Barton Beebe , “riaa-clinical@eon.law.harvard.edu” , William Fisher

It,” 114 Yale L.J. 535, 537, 562-86 (2004).

be filed TOMORROW. Bad, bad, bad.

R. >it is practically impossible to frame and present a nullification case. despite

From: Charles Nesson [mailto:nesson@gmail.com]

am hoping to have the issue in the sjc in june

this is your focus. from whose viewpoint is this question asked?

can you to explain fair use to joel so that he can understand it

are there other instances of noninfringing noncommercial nontransformative fair copying

- Show quoted text -

6:39 AM (3 hours ago)

6:46 AM (3 hours ago)

6:48 AM (3 hours ago)

show details 7:39 AM (2 hours ago)

that’s not joel

TOP EVIDENCE EXAMS 2009 question 1

This is evidence of the flexibility of judges. Evidence of the flexibility of rules.

The attached audio file (“ ”) is further evidence.

In the beginning, the exam was without form, and void

The Narrator teaches I identity

The Narrator teaches I representation

The Narrator teaches I to see similarity and difference

The Narrator breathes Intention into I

The Narrator creates U in the image of I

Together I and U create a language

The Narrator teaches I and U a game

Ordinarily, evidence is offered in conjunction with a hypothesis or theory. First there is a

The purpose of an explanation is to be accepted. To say an explanation is accepted means that a

To call something evidence is to presuppose the existence of a question to which it suggests an

Of What is This Evidence?

It was not so, formerly.

But if Truth comes to us through a glass, darkly

whoever God heals first wins.

No! I am not J. Prufrock, nor was meant to be;

But in the Courtroom, the Prosecution tells its story

Here, underground, Evidence is but a shadow—

11:36 a.m., Friday, Building Reality.

2:05 p.m., Sunday, Story Time.

» radiohead - has a certain pace to it > eon >>