Archive for the 'rhetorical space' Category

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Whitney HARPER Cert Petition Filed

here’s a link to the story

here’s a link to ben sheffner’s blog

here’s a link to phil hill’s blog


yes indeed!



pictures of whitney at sixteen
pictures of sibley and camara representing her.

this is a story that goes back to my torts class, 2002,
when a brilliant student of mine got hurt for putting his class notes up on the net and where a bullying email to a victim in the class led to anguish blamed on him and how that cost him his academic career and pushed him into law practice with a classmate defending innocent and unjustly burdened people.

consider this media for the law firm, should we ask sibley and camara to sponsor the film? further question for the question tool, itself a pedagogical invention capable of taking socratic dialog to new dimension.

how to save the light. post it. put it in format to allow others to follow the story. make the answers to the questions clickable. fill in framework.

knot crazy1, bring it on home


tennenbaum opposition to entry of judgment and injunction

public freedom versus copy right
copy right versus public freedom
which side are you on?
should public freedom bear the burden of proof?

Move with the development of creative commons and the lack of copyright registration to a cyber world in which amateur and professional entertainment mix, in which who knows whether bits are “copyright” bits or “creative commons” bits. how can one know this without having additional information not communicated directly through the medium? one has to have another mode of knowing. there has then to be another mode of teaching a rule of behavior with respect to the cyber bits in question.

This is wrong, in the sense of bad construction of cyberspace. One can see the impossibility of educating man woman and child world over about which bits are copyrighted and which bits are not. the bits themselves give no evidence either way.

Copyright’s rule in cyberspace will be built into the code that runs the space. If fair use for we the people is to be preserved for the future then its constraint on copyright must likewise be built into the code. The challenge of building cyberspace so as to preserve human freedoms is immense. Resolving the challenge by crushing consumers with blunderbuss statutory damages at the copyright holder’s behest is neither intelligent nor fair. This is a time in our nation to trust the code of our Constitution. A presiding judge should respect the deliberative roles of Congress and the jury instead of deciding for herself.

make a line going forward that the generation of digital natives can live with proudly instead of a blurred line that leaves them vilified and condemned as thieves. make it the predicate for advancing the right to jury trial as the ultimate bulwark of our freedom

Tenenbaum Opposition to Entry of Judgment and Injunction

Is the Internet a Human Right?


Social Justice in the Age of Facebook

peter suber points me to ed felten’s brilliant take on three strikes for books

Jury Nullification

the jury did just what it was told to do. the jury is not to be faulted for the verdict. the fault is in the law.

the judge tells the jury what the law is, and orders the jury to enforce it. This is the first constitutional hypocrisy. The Jury is the law. “You are the law.” Paul Neuman in the Verdict had it right.

People ask how can common-sense juries have returned verdicts of $675k against Joel and $1.92 mil against Jammie Thomas Rasset? The answer is the verdict form and the judge’s order to the jurors to fill it in as they are told. The jury is not to blame. The fault lies with the interpretation of the law that shaped the form and with the judge’s order that the jury is bound to it. Congress never authorized it. Our Constitution does not condone it.

On this we have just begun to fight.

There is no place on the verdict form for judgment whether what Joel did was right or wrong, fair or unfair. The law the RIAA persuaded the judge to impose simply declared the conduct of a generation to be wrong, no jury trial. Just fill in the form, the jury’s only task to say how much the defendant must pay, with instructed minimum and maximum for each infringement.

thirty times

The jurys’ bankrupting verdicts are not flukes. They are the product of rotten law. Proof in math is often made by reductio ad absurdum: If your logic leads to absurd result then your premise must be wrong.

Fairness and Justice are jury issues, in this case taken from the jury, the jury’s fundamental function nullified.

The table is now set. The question is presented. Next event is Judge Gertner’s opportunity (or not) to remit the excessive award against Joel to a reasonable (constitutional) amount.

library of cyberspace – 911

urs, amar, phil, jp, i’m aboard alchemy reading the notes of the gbs conference you organized feeling a thrill as i grasp the dimension of what the notes record. The perspective being articulated is public interest with education as strategy for the future. the corporate giant needs an equally growing open environment in which to thrive. The idea that public university and philanthropy could offer balance becomes a possible reality. thank you for great work in organizing this event. i am tremendously sorry to have been absent.

highlights in the notes for me:

“But the Google Settlement puts extreme limits on what libraries can do what their digital copies. They can’t have faculty/students READ them, for instance. Materials remain dark until 2050–an eternity in the digital world.” Did somebody at Harvard actually agree to this?

“If every provost told every committee chairmen at each university that they liked open access then we could all join together and make the transition. It will take a while and there will be calamities, but if provosts, presidents, and chairs of committees gave this support then the staff and researchers will follow.” – radical!


It is fear that has held our society in the belief that our children are not to be taught everything and are therefore to live a naïve existence till fate makes them wiser or not.

Hi Charlie!

Glad that you are finding the notes helpful! If interested, we’ve posted the video record of the plenaries here:

And although un-edited and not public quite yet, audio of the breakouts can be found here:

You were most certainly present in spirit, as most of the digital media can attest 🙂



twitter me

i am aboard alchemy with fern. i am a lawyer with a laptop on my knee. i would twitter were i connected to the net but here aboard alchemy i am knot. so today i go in search of a broadband wireless card to get us connected

make it an ad and get corporate support

who can make the video, fern and eon on alchemy needing to connect. larry rivers asked a question with his art. twitter poses it again. am i blogging, am i writing a brief, am i sitting with a laptop on my knee tapping keys, i am all of these

i propose a game to be played in cyberspace.

start with an uninflected question: lay out the facts fair to both sides. how much should joel be made to pay?

let people feel the full power of the prosecution’s case right through to the verdict form and judge’s instruction to follow it.

then fill in the verdict form

morning mail – honored to see my teaching take hold

From: K.A.D. Camara
Date: Thu, Jul 23, 2009 at 1:13 PM
To:  rudy at, Charles Nesson


I like very much the idea of conducting this litigation publicly. I think as we go along over the next month, we should start explaining the dispositive motions arguments to the world — first sale and 117 non-infringement, nominative use of trademarks, preemption, and copyright misuse. We have the advantage of a press corps that’s already engaged and that enjoys diving into legal arguments.

I also like the circus idea. We need to make sure that our circus day doesn’t vary in any material way from how we do business ordinarily, other than that lots of people plus Apple are also roaming around the office. Our people will be asked about this in depos.

As for scheduling, we’re negotiating dates with Apple right now and should be able to pin down a final schedule in the next couple of days. As you can imagine, they’re nitpicking over who exactly we get to depose and in what order. A nice follow-up post might be the roster of Apple people being deposed — we can invite the world to send us questions.

I’m cc’ing Charlie Nesson on this, who I told about the case, who likes our side and story, and who is expert in public litigation.


On Thu, Jul 23, 2009 at 11:27 AM, Rudy Pedraza wrote:


Hope all is well. Yesterday my staff forwarded you and CeCe a link to the blog we intend to launch now with our next newsletter; when you get a chance please let me know if the content is acceptable. We particularly wanted CeCe’s input on how we presented the change of counsel but keeping it light, upbeat and funny if possible (re: Cowboy quip).
I’ve also been thinking about the upcoming visit from Apple during depo week (which in my opinion is akin to letting Terrorists visit the Pentagon). Although the idea makes me uneasy, I figure that if we let them in, we might as well have an *event* for the public the same day showcasing our products and letting customers touch and feel them first hand. How do you feel about that? The theme of the day would be something like “The circus comes to town”, with everyone knowing Apple was also coming and at the same time making the public aware of how ridiculous Apple is behaving. Of course the key to pulling this off is planning, so we would need to get the visit date nailed down ASAP to ensure we get good media coverage.

Best regards,

hello justice roberts – internet calling justice roberts

Mr. Justice Stephen Breyer
c/o Clerk of Court
Supreme Court of the United States
Washington, D.C. 20543

Dear Mr. Justice Breyer:

By an oversight I cannot explain, an earlier letter addressed to Mr. Justice Souter and delivered June 26, 2009, was not successfully filed and entered on the Supreme Court docket. Its substance, which is still timely, is reproduced below, but with the additional information pertinent to you that your son Michael is a principle in the company that would do the operational work of digital transmission if the request below were to be granted. Anticipating recusal, I ask if possible that our request be referred to the Chief Justice.

I am the Weld Professor of Law at Harvard Law School and founder of the Berkman Center for Internet & Society at Harvard University. I represent (pro bono) Joel Tennenbaum, a student being prosecuted by the RIAA for downloading and sharing music through a peer-to-peer network, Sony BMG Music Entertainment, et al., v. Joel Tenenbaum, consolidated to Capitol Records, Inc., et al. v. Noor Alaujan, No. 03-cv-11661-NG (D. Mass.).
On the defendant’s own behalf and on behalf of the digital public, Defendant Tenenbaum moved to establish public access through internet to gavel to gavel coverage of the public proceedings in the case, starting with pretrial proceedings. District Judge Gertner granted this motion with respect the public pretrial proceeding scheduled for January 24, 2009, involving argument of motions, and indicated that further requests pertaining to internet public access for later proceedings and trial would be entertained. The courtroom’s already installed equipment was to be used to capture and narrowcast the proceeding to the Berkman Center for Internet & Society at Harvard University, which would in turn serve it to and share it with open net. See Capitol Records, Inc., et al. v. Alaujan, 593 F.Supp.2d 319.

This plan was frustrated by an extraordinary writ of advisory mandamus issued by the First Circuit Court of Appeals barring Judge Gertner from allowing this public access to her courtroom. The First Circuit panel declared that Local Rule 83.3 of the District Court denied Judge Gerter any and all authority to allow digital recording in her court. See In re Sony BMG Entertainment, et al., 561 F.3d 1. A request for hearing en banc was denied on April 30, 2009. A petition for certiorari to the Supreme Court of the United States was filed on June 2, 2009 and is now pending, docketed as No. 08-1506.

The trial of this case is scheduled to begin July 27, 2009. Judge Gertner will abide by the First Circuit order of prohibition unless it is stayed or overturned.

To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. The issues in this case are of particular concern to the digital generation and to the future of the internet.

I respectfully request that either you or Chief Justice Roberts suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the full Supreme Court of our petition for certiorari.

Absent the requested suspension of the rule or stay of the trial, the petition for certiorari will be moot.

For these reasons, we respectfully seek your assistance.

Respectfully submitted,

Charles Nesson
Counsel for Petitioner Joel Tenenbaum


I, the undersigned counsel, hereby certify that on June 26, 2009, pursuant to Rule 29 of this Court, I caused the attached letter to be served on counsel of record for the Respondents in this action by United States Postal Service, first class, at the following addresses:

Daniel J. Cloherty
Victoria L. Steinberg
Dwyer & Collora LLP
600 Atlantic Avenue, 12th Floor
Boston, MA 02210

Eve G. Burton
Timothy M. Reynolds
Holme Roberts & Owen LLP
17 Lincoln, Suite 4100
Denver, CO 80203

Charles Nesson
Counsel for the Petitioner