Author Archive for nesson

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COPYRIGHT in the hands of homeland security

similarity in copyright and secrecy enforcement coming to the surface

Government shuts down music blogs with “complex symbiosis with the music business

“if you’ve ever been in a marketing meeting at a record label, it’s ‘Hey, can you leak this to the blogs?’ Leak is now a marketing verb.”

“For now the seized domains are in legal limbo. David Snead, a lawyer specializing in Internet cases who is representing the owner of, speculated that it might be 30 to 60 days before he would be able to see a seizure order. “The government is providing zero information to help us determine what he is being charged with,” he said. “It’s a black hole.””…

will joel’s issues be heard



Children’s understanding of copyright and fair use, and how it changes over time


to testify to the human impetus to share songs and the ubiquity of the songs joel shared on the net.

* Incubus – New Skin
* Green Day – Minority
* Bad Religion – American Jesus
* Outkast – Wheelz of Steel
* Incubus – Pardon Me
* Sublime – Miami
* Nirvana – Come As You Are

If one searches for any of these songs on YouTube today, one finds numerous instances of each, sometimes numbering in the dozens or even hundreds.


For the overwhelming majority of users, file sharing is purely for enjoyment and sharing with friends in an entirely non-commercial setting. Live music performances are in demand and that industry branch is flourishing and utilizing Internet technology. The traditional mass-market music CD album sales are in terminal decline due to technology progress and destructive business strategies of the past decade.

Why is my brief not helpful to the Court?

The Supreme Court continues to address cases where the decision turns on the intricate interpretation of a single word in a statute or regulation. But increasingly the cases that most engage the justices and that matter most to the court are about interpreting the Constitution and its allocation of power.

In Citizens United, in which the court unleashed corporate, union and other money into electoral politics, the majority overturned a century of precedent that it had twice recently reaffirmed. It did so by moving past the limited controversy that was actually in the case and deciding a sweeping issue of constitutional law that no party had raised for the justices to consider.

It also inserted itself where the court has said it should be most restrained, deferring to other branches with more competence to decide questions about the workings of politics, including about the role of money.

thank you lincoln

Judge Alito gets it

Whitney Harper, Petitioner v. Maverick Recording Company, et al.

No. 10-94.


November 29, 2010, Decided

JUSTICE ALITO, dissenting from denial of certiorari.
I would grant the petition to consider the question whether 17 U.S.C. § 402(d) applies when a person is found to have engaged in copyright infringement by downloading digital music files. Un-der § 504(c)(1), an infringer is ordinarily liable for statutory damages of “not less than $ 750 or more than $ 30,000” per work infringed. In a case involving an “innocent infringer,” however, the minimum statutory damages that must be awarded are reduced. Specifically, if the infringer proves that he or she “was not aware and had no reason to believe that his or her acts constituted an in-fringement,” then the minimum statutory damages per violation are $ 200. § 504(c)(2).

In this case, a 16-year-old was found to have infringed respondents’ copyrights by downloading digital music files. The District Court held that there were genuine issues of fact on whether she qualified as an innocent infringer, but the Court of Appeals reversed, concluding that another provision, § 402(d) foreclosed the innocent-infringer defense as a matter of law. Section 402(d) provides, with an exception not relevant here, that if a prescribed notice of copyright “appears on the published phonorecord or phonorecords to which a defendant . . . had access, then no weight shall be given to . . . a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.” (Emphasis added.) The term “phonorecords” is defined as including only “material objects.”

There is a strong argument that § 402(d) does not apply in a case involving the downloading of digital music files. This provision was adopted in 1988, well before digital music files became available on the Internet. See Berne Convention Implementation Act, § 7, 102 Stat. 2857. The the-ory of § 402(d) appears to be that a person who copies music from a material object bearing the prescribed copyright notice is deemed to have “reason to believe that his or her acts constituted an infringement,” § 504(c)(2). But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that § 402(d) does not apply. In such a case, the question would simply be whether the infringer “was . . . aware and had . . . reason to believe,” § 504(c)(2), that the downloading was illegal.
The Court of Appeals in the present case adopted a very different interpretation of § 402(d). The court held that the innocent infringer defense was “foreclose[d] . . . as a matter of law” because (1) respondents “provided proper notice on each of the published phonorecords from which the audio files were taken” before they were made available on a file-sharing network and (2) petitioner relied solely on § 504(c)(2) and did not dispute her “access” to the phonorecords under § 402(d). 598 F.3d 193, 198-199 (CA5 2010). Under this interpretation, it is not necessary that the infringer actually see a material object with the copyright notice. It is enough that the infringer could have ascertained that the work was copyrighted. The Fifth Circuit did not specify what sort of inquiry a person who downloads digital music files is required to make in order to preserve the § 402(d) defense, but it may be that the court had in mind such things as research on the Internet or a visit to a local store in search of a compact disc containing the songs in question. In any event, the Court of Appeals re-jected petitioner’s argument that her youth and lack of legal sophistication were relevant considera-tions — a conclusion that would not necessarily be correct if the determinative question were simply whether petitioner had “reason to believe” that her actions were illegal. Although “reason to be-lieve” is an objective standard, it is by no means clear that certain objective characteristics of the infringer — such as age — may not be taken into account.

The Fifth Circuit’s decision may or may not set out a sensible rule for the post-“phonorecord” age, but it is at least questionable whether the decision correctly interprets § 402(d). Although there are now no conflicting Circuit decisions, I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals. The Court has decided not to grant review at this time, but if a conflict in the Circuits develops in the future, the question presented, in my judgment, is important enough to warrant review.

Motion Denied!


“The Court has fully considered Professor Nesson’s submissions

and concluded that the proposed brief would NOT be of assistance to the court.”


not so much as thank you for the effort


The opening paragraphs of my rejected offering in friendship were:

Federal Rule 59(d) empowers the Court on its own motion
to “order a new trial for any reason that would justify
granting one on a party’s motion.”

Jammie Thomas has been tried three times, each time
according to a script that has led to outlandish jury
awards. Clearly something is wrong in the interpretation and
application of the law that produces and replicates such

Amicus Curiae urges the Court, on its own motion, to
recognize the errors of the previous proceedings against
Jammie Thomas and to enter a judgment in her favor
notwithstanding the verdict.

Here’s the full brief


prelude to disappointment


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1. Visit
2. Enter your Gmail username into the ‘Email address’ field.
3. Enter the verification word.
4. Select ‘Email to ****@***.com’, then click ‘Continue’.
5. Follow the instructions on the following page to finish resetting your password.

Step 3: Once you’ve changed your password, make sure your password recovery options are up-to-date by visiting…

Step 4: Secure your Google Account against unauthorized access by following our step-by-step instructions at…. In particular, check your Gmail settings (filters, forwarding, POP/IMAP) to make sure your mail isn’t being forwarded to an account you don’t recognize.

We’re glad to have you back as a Google Accounts user again.

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HACKED! Not a way to be in touch with friends :<(

Apologies for having to reach out to you like this, but I made a quick trip to the UK and had my bag stolen from me with my passport and credit cards in it. The embassy has cooperated by issuing a temporary passport, I just have to pay for a ticket and settle Hotel bills. To be honest,i don’t have money with me,I’ve made contact with my bank but the best they could do was to send me a new card in the mail which will take 2-4 working days to arrive here.i was thinking of asking you to lend me some quick funds that i can give back as soon as i get in,i really
need to be on a last minute flight that leaves in a few hours.

I can furnish you with info on how you will get me the money. You can reach me via ( chrlnesson at as am logged on via a smart device or hotel’s desk phone, the number is, +447045749898.


this well-crafted message begging money was sent, judging by the rush of calls coming in to me, to every email address in my address book.

my gmail account was hacked yesterday morning. my effort to regain control of my account has not yet been successful. it’s no piece of cake, Google offers only a flat web interface with no human behind it and no way to send a message. After my first try i get this back:


Thank you for filling out the account recovery form. We know losing access to your account can be a frustrating experience and we want to help.

At Google, we take your privacy and security seriously. We’re committed to returning accounts only when we’re sure we’re giving them back to the accounts’ owners. Unfortunately, based on the information you provided, we were unable to verify that you own this account. To ensure that we are not compromising the security of the data, we can’t return the account at this

If you can provide additional information to verify that you own this account, please visit… and submit another request, providing as much accurate information as possible. If
you’re unsure about specific dates, provide your best guess.

Because Google doesn’t ask for much personal information when you sign up for an account, we don’t have many ways to verify that you own an account. In order to verify that you’re the real owner of an account, we need specific details about your account during the recovery process. We also can’t accept identification documents as a proof of account ownership because we don’t consider this a secure method. For more information on this policy, please visit…

If you are unable to provide specific information to recover the account or would like to create a new account, please visit…

We apologize for any inconvenience and appreciate your cooperation and understanding.

The Google Account Recovery Team


Please do not reply to this email. If your question was not answered,
please visit the Google Accounts Help Center at

which sends you around the same loop again


“The answer isn’t always money,” Bush said. “There needs to be a compelling story.”…

Their reform comes down from the top and feels directed against teachers. Here is a compelling unfolding story coming up from the bottom to support teachers – in my email from Jamaica:

Shalette East of GoGSAT to Charles
6:55 AM (53 minutes ago)

I think this is a nice way to present the collaboration to the public and invite sponsors to come on board, what do you think?

The Berkman Center at Harvard, S.E.T and GoGSAT Team up to Provide Free GSAT Website and online resources to Jamaican Students and Teachers

Jamaican students in grades 4-6 can now prepare for their Grade Four Literacy Test (GFLT) and Grade Six Achievement Test (GSAT) free of cost courtesy of a partnership among Harvard, S.E.T and GoGSAT and numerous local and international partners. This collaboration sees the bronze version of GoGSAT which is priced at $3,000 per year being open to students and teachers at no cost to them.

The bronze version of GoGSAT comes with the following features: 24/7 access to: pop quizzes (1000s of interactive practice questions), interactive study guides in Mathematics, English, Social Studies and Science, interactive study notes, pre-tests, downloadable PDF Communication Task forms, printable handouts and worksheets, timetables, a comprehensive FAQ, PDF training manual, integrated technical support, eBulletin board, real time eNotebook, real time grade book and the first in the region Macmillan integrated dictionary. In addition Harvard students will serve as mentors to the users in the system’s chat room. The Bronze system also features online resources such as printable handouts, tests and worksheets for teachers. Like students, teachers also register online for free. However, they need to contact GoGSAT to have their accounts upgraded to a teacher’s account to enable them to access the teacher’s portal.

Furthermore students will be able to utilize the award winning USAID/JCF/MOE/SDC/CDA Community Safety and Security Courseware. This will allow students to learn about safety and security, leave questions on their personalized help desk for the police and chat with Police Officers in real time. To date over 5000 students and teachers are registered on GoGSAT bronze.

GoGSAT has been providing GSAT preparation to Jamaican students for five years at three service levels (Bronze, Silver and Premium). To date, the company has won four national awards and has seen over 50 of its subscribers earning national scholarships. To register for GoGSAT bronze, simply visit, click register now and complete the online form. A user name and password will be generated and emailed to you. If you would like to partner as a sponsor please contact Kevin Wallen of S.E.T at telephone number. Sponsorship starts at J$15,000 (US$200) per year (5 students). Sponsors will also be listed on the GoGSAT sponsorship page.

Shalette has already signed up over 5000 Jamaican students for free GoGSAT Bronze

Kevin Wallen and Michelle Robinson are leading a pilot program at Mountain View Primary, joining our effort at Ascot High. This video documents our early connection with Michelle when she was a teacher. She is now principal of the school.

we are students expressing truth interested in exploring ways for teachers to use tests without falling prey to them in a pilot program working with Jamaica: Our Island Nation

smile jamaica


design opportunity

not extraordinarily complex compared to cataloging the stars

As Darnton scopes it out, our new library of Alexandria would be built incrementally upon a registry the would serve
:• digital files of books in the public domain, about two million works;
:• noncopyrighted material digitized from the special collections of libraries and museums;
:• collections already aggregated from networks of databases such as the National Digital Newspaper Program, Digital Collections and Content, Opening History, the National Science Digital Library, and the Biodiversity Heritage Library;
:• holdings of HathiTrust, the Internet Archive, and PublicResource.Org;
:• books covered by copyright but out of print. Permission would have to be secured from the copyright owners, but many authors of books that had long ago ceased to sell would be delighted to have their works revived in digital form;
• orphan works, assuming congress passes legislation;
• publishers backlists and frontlists, if terms are attractive enough,

Add music


nov 18 – building it

filed my brief, felt good about what i said and how i said it, cold water from jason worried about offending, disappointment from phil that he hadn’t had his chance at it, nothing back from anyone else; suppose i’m just wrong, the merits don’t count because they are not being presented right, that can’t be, or can it; is the fact that my style is not that of a law firm a strike against me?

just felt power from the dealer’s position, pushed in with a bet six times larger than the limpers, poker a betting game depending a lot on position, looking either for a good hand or good position with what you see as weakness already shown in front of you where they see strength from you and even if they think you are bluffing have nothing to bluff you out with but a bluff of their own, which you’d best watch for, and watch for the guy doing the position play to be vulnerable to it. i wish i had full feel for it, for the variation of how the cards play into the betting game as the tournament moves along, the sit and go table a training marvel. see and feel the basic move from dealer’s position when the action is limped around to you

you don’t exist in cyberspace if you don’t exist on the net. if you do exist in cyberspace you be. be. budha says be. i & i be by blogging thought in action in thinking and doing

ok, so edit today’s email thread. i follow the link to darnton.

Can We Create a National Digital Library?

fight my way through a poll but because it’s the new york review of books i don’t mind

he begins with a questionable statement:
“Simple as it sounds, the question is extraordinarily complex.”

more to say