Testing the Limits of the Fair Use Doctrine

Professor Charles Nesson of Harvard Law School is defending a Boston University graduate student, Joel Tenenbaum, accused of downloading music illegally by the Recording Industry Association of America. Nesson is well known for his passion for technology. He has taught using Second Life; click here to see a YouTube video about the course. He is also a founder of the Berkman Center for Internet and Society at Harvard. Nesson's tactics in the RIAA case have caused as much comment as the lawsuit itself, according to this article from the Boston Globe.

In the past few weeks, he has tape-recorded a telephone conference with a federal judge and opposing counsel, and then--after US District Judge Nancy Gertner of Boston told him to shut it off--posted the recording on his blog and featured it in a take-home exam on evidence for his students. Nesson also posted dissenting e-mails from academics he had hoped to call as expert witnesses for the defense but who rejected his legal theory that Joel Tenenbaum had the right to download songs under the fair use doctrine of copyright law. And he put up a four-minute recording of his wife, Fern, a former Harvard law student of Nesson's, denigrating the experts as misguided naysayers and one of Nesson's law students working on the case as a "schmuck."

Practitioners and academics interviewed for the article described Nesson's posting of the e-mail messages as "insane," "bizarre and risky." According to one, "the recording industry could try to share the comments with a jury to undermine Tenenbaum's case." On the other hand, "Nesson's transparency might be part of a broader strategy to spur debate and make the case a public referendum on the file-sharing lawsuits." Click here to read Nesson's brief opposing RIAA's motion to dismiss the counterclaims. Is Nesson crazy like a fox, or is he just crazy?