Word: nesson
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While he celebrates participation and even dissension, Nesson is the guiding force at clinical meetings, seated at his large, elbowed desk, arms often clasped behind his head. The team’s legal argument has never lacked for novelty. When he initially took the Tenenbaum case, Nesson made it clear that he would launch a constitutional attack on the so-called “Digital Theft Deterrence Act,” which mandates damages of up to $150,000 for willful copyright infractions. Such a scale for damages was disproportionate to any harm committed, the team suggested, putting...
More innovation followed soon after, when Nesson decided that, in the interests of open access, the proceedings of the Tenenbaum case should be available online. “[In] the original constitution, the idea of a public trial was that anybody from the village could come and see the trial,” Nesson tells me. “So now, all of a sudden, we find ourselves in an internet world where the technology permits everyone in the village to come to the trial again...Law needs to be aware of that.” In late December...
...First Circuit Appeal is over—a loss for the Tenenbaum team—and there’s an even greater sense of urgency in the air. The case would have to proceed, it appeared, without the “village” full of Web viewers. Nesson, who had made what one judge called a “powerful, eloquent” argument in support of the Web cast just a few weeks earlier, had predicted the opposite outcome, making the result all the more jarring. “The troops are disheartened,” Meister...
...from backing down, Nesson was already incubating a new assault on convention. The First Circuit decision against Web-casting came on April 16. Just a couple of weeks earlier, the professor had made waves in the legal community when he posted an e-mail chain to his blog suggesting an idea for a new, radical defense. Perhaps individuals like Tenenbaum, downloading music for free on-line several years ago when there weren’t any suitable for-pay options such as iTunes, weren’t committing a copyright infraction. Perhaps, Nesson now surmised, such activity wasn?...
When I visited the Tenenbaum team in late April, the notion wasn’t going over well. In private e-mails later posted to Nesson’s blog, some of the nation’s top copyleft academics—the very people who Nesson had intended to recruit as expert witnesses for his side—had decried the idea. Fair use is typically assessed based on a four-factor test that includes such questions as how much of a particular published material is being copied and what effect the copying might have on the material?...