Archive for the 'Uncategorized' Category

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morning mail from my kids

from becca

i heard on npr news this morning a little piece of info about naacp launching a program in new york that allows people to report police misconduct by uploading photos or video taken on their cell phones of their
interaction with the cops. thought you might be interested…

from wayne

some interesting evidence re: the idea that if joel wanted to listen to those songs today, he’d use something like youtube rather than kazaa

also, btw, since we were talking about it, here’s my favorite eulogy for oink

peer to peer sharing the essence of the open net

Hello Professor Nesson,

Your case was being discussed on slashdot and one poster brought up the
RIAA propaganda at the beginning of most films comparing downloading to
theft of cars and handbags etc. He made the point that they are tainting
the jury pool with lies and even suggested the possibility of sanctions
against them.

I don’t know if that’s realistic, but the post is here:
I hope it helps in some way.

Rohan Walsh

Copyright laws threaten our online freedom

By Christian Engström

File-sharing occurs whenever one individual sends a file to another. The only way to even try to limit this process is to monitor all communication between ordinary people. Despite the crackdown on Napster, Kazaa and other peer-to-peer services over the past decade, the volume of file-sharing has grown exponentially. Even if the authorities closed down all other possibilities, people could still send copyrighted files as attachments to e-mails or through private networks. If people start doing that, should we give the government the right to monitor all mail and all encrypted networks? Whenever there are ways of communicating in private, they will be used to share copyrighted material. If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.

morning walk before joel’s deposition


XO laptops SET Jamaica

From: Charles Nesson
Date: Tue, Jul 7, 2009 at 6:12 AM
To: Nicholas Negroponte
Cc: Kevin Wallen , CALEEN DIEDRICK , tHINKbANK , wayne brown

nicholas, i have just received email from four of the students in the SET summer program started today in jamaica. tomorrow i should connect with the rest of the class and begin freerice competition. how can i connect this group with another group on another island, like new zealand?

exciting. more to come



shavell smalling
to me

My name is shavell smalling. I am 13 years old. I live at 2west greater
My hobbies are singing, dancing and socializing with friends.
I am a little shy and don’t like to be shot at.
I am a nice, strong and helpful girl.

motion to compel anwers to interrogatories

hearing coming up tomorrow
love and support to richard parker
constitutionalist for we the people

Forwarded conversation
Subject: interrogatories

From: Charles Nesson
Date: Tue, Jun 16, 2009 at 6:18 AM
To: dcloherty

dan, will you respond to our first set of interrogatories served on you may 8, 2009, and if so when

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.

From: Cloherty, Dan
Date: Tue, Jun 16, 2009 at 6:56 AM
To:  nesson at

The responses were served last week. When I get to the office this am I will get a copy and send it to you via e mail.

From: Charles Nesson
To: Cloherty, Dan
Sent: Tue Jun 16 06:18:22 2009
Subject: interrogatories

From: Charles Nesson
Date: Tue, Jun 16, 2009 at 10:54 AM
To: “Cloherty, Dan”

got them from victoria, thanks.

From: Charles Nesson
Date: Thu, Jun 18, 2009 at 8:21 AM
To: “Cloherty, Dan”

please respond immediately to our second set of interrogatories.

From: Charles Nesson
Date: Thu, Jun 18, 2009 at 10:44 AM
To: “Cloherty, Dan”

dan, in light of the judge’s ruling on fair use, will you nonetheless be maintaining your objections to answering our first set of interrogatories, and making similar objections to our second set?

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.

motion to strike john perry barlow

Motion to strike


Fair Use and Open Education:

One of the strengths of the copyright system is the acknowledgement that although authors have rights to their work, others can use copyrighted work when it falls within the boundaries of Fair Use. Whether articulated as a right to use copyrighted work or as a defense against charges of infringement, the Fair Use doctrine has promoted education, social criticism and new forms of artistic works. The long history of Fair Use and the assumptions that follow when it is invoked limit its utility for creating a useful system of materials for Open Education.

Traditional Fair Use doctrine was only common law in the U.S. until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the Fair Use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.[

However, the educational prospects emphasized in the first prong of Fair Use are underutilized. This underutilization stems from the belief that ” many, if not most, secondary uses seek at least some measure of commercial gain from their use” (American Geophysical Union, 60 F.3d at 921). Essentially, the interpretation has become that not all educational use is Fair Use, and perhaps not even most educational use in some circuits. A non-profit website that reprints articles for educational use would almost certainly be found to infringe copyright, if it can be shown that the market for the original has been affected, even if the website itself is non-commercial.

With the growth of international online educational opportunities, Fair Use should be reevaluated. Until the Fair Use doctrine truly incorporates the educational uses needed for Open Education, traditional copyright hinders the development of equal access.

Open Education is not localized to the United States, but is an international phenomenon. Copyright law and the application of the educational prong should be brought into line with the reality of the online environment. Open Education has been defined in a myriad of ways (as can be seen at

Open Education is any individual having free access to a variety of educational resources. It enable individuals or communities to engage in learning whether for their own pleasure and intellectual curiosity or for professional and academic advancement.

Open Education is an opportunity. I suppose at times it will be a majestic and inspiring, white canvas. Or a black hole. A space that allows one to be outside one “self” and experiment with alternate “selves” with different morals and beliefs.

Open Education is a realization of Rousseau’s delight-led learning. It provides a framework through which students can explore topics rather than rote-based learning. Open access is the first step to creating an interactive learning environment.

Ultimately, the key to the success of Open Education is the equality of opportunity.

Caity Ross

TOP 2009 EVIDENCE EXAM question 2

Excerpt of Remarks to RIAA/MPAA Joint Luncheon

… Joel’s supporters have a have a bold vision for the future. They see an open net, an artistic culture of sharing and collaboration, a culture of unbridled creativity and innovation. Beyond this, they see the net as a means of reorganizing and democratizing society; of breaking down centralized power structures and propaganda systems, and of breaking out of outmoded mores and traditions. They argue that existing intellectual property law stands as an obstacle to their imagined future and the benefits it promises.

The fact is that openness, creativity, innovation, collaboration and freedom are all desirable goals. If we are seen as opposing these things, we will lose. Joel’s supporters have framed this as a battle between the future, which they represent, and the past, which we represent. Our challenge is to demonstrate that Joel’s supporters have not set a realistic path for achieving these goals, but that we can.
To do so, we must first be honest with ourselves. Our industry is, to borrow a phrase from social science, “path dependant.” Our options for future evolution are constrained by the inertia of the systems we have developed over the past century. Countless peoples’ time and resources have been devoted to developing this way of creating and distributing art and culture. This is not simply a matter of sunk costs and it encompasses more than just our shareholders, our employees and our artists. It encompasses the local economies of which we are the lifeblood, the human capital, the specialized expertise developed to produce our products, the distribution networks, infrastructure, financing systems, talent scouting and on and on.

What the internet vanguard fails to recognize is the extent to which they too are dependent on this path. We represent more than just a way of doing business—we are the way culture is financed and created in our society. Joel’s supporters believe that we can simply be consigned to the dustbin of history—as if having reached the top rung you could saw off the ladder beneath yourself. They ignore the enormous downside risk to abandoning this path. Starve us of revenue and musicians are not paid, movies are not made, and the engine for cultural production collapses. Without the mass culture we create, there would be no shared experience to forge our national identity; to serve as the glue that holds our society together; to enable us to relate to one another in a meaningful way. Without mass-culture there would be no counter-culture. Without the art we create, what would there be to share, to borrow, to respond to, to remix, and to define oneself in opposition to? Art and information must be, for lack of a better word, commodified in order to be organized and integrated into a coherent social fabric.

Our copyright laws are imperfectly suited to the realities of the internet and must be reformed. However, if we did not resist the virtually unlimited free distribution of our products that is taking place over the internet, we would be bankrupt long before any reasonable accommodation could be reached. Joel’s supporters must recognize that our industry plays a vital role in fueling the creativity of the open net. In turn, we must recognize that the collaborative net culture creates genuine value. Together, we must find a way to harness and monetize this creativity and innovation without dislocating everything that has come before. …

transition to freedom

From: David Weinberger
Date: Sat, Jun 20, 2009 at 12:24 PM
To: Berkman Friends

Chris Anderson’s book about the new economics of freeness
1. Chris points to the moment when radio broadcasts made music free as an example of a time when a product suddenly went from for-pay to free. Drake is wondering if there are other such moments in our history.

At 12:47 PM 6/20/2009, Peter Suber wrote:
> David and Drake, A similar moment occurred in 1840 when England introduced the postage stamp. Before that, mail was free for the sender, but the recipient had to pay to collect it from the post office. When mail became free for recipients, its use skyrocketed.
> Like mail, radio is not free for everyone, just for the “recipient”. It has production costs, but they are paid by the “sender” so that end users can get the content free of charge.
> In this 2002 article, I compare “going postal” to the open access revolution now in progress –shifting the costs of research publications from recipients to senders. (In early 2002, the term “open access” was too new to be widely understood, so I used the older term “free online scholarship” or FOS.)…
> Peter
> Peter Suber

the little hills of truro – jammie thomas rasset verdict

morning walk and mail – will i land in jail

From: Debbie Rosenbaum
Date: Wed, Jun 17, 2009 at 6:50 AM

after yesterday’s ruling, we need to be on point, on target, and on the ball. we need to get our experts lined up. we need to think about trial strategy. we need to draft. we need to prepare. WE NEED HELP.

if you ever take my advice, take this: let’s get a law student to help us full time until trial. a while back, i emailed you about a guy i knew who would be perfect for the job.

From: Charles Nesson
Date: Thu, Jun 18, 2009 at 5:49 AM
To: Debbie Rosenbaum

what point do we need to be on
what is the target
our experts are getting lined up
trial strategy is well in hand
what do we need to draft
what do we need to prepare
what do we ask the law student to do
delighted that you will be at trial
here’s my todo
june 22
expert reports
any further discovery
june 23
motion to compel response to interrogs
jury instruction
motion to see jury film
media sentry motion
june 24
letter to souter

has your professor done something illegal
what does it mean that your judge says so