Harvard lawprof Charles Nesson was thought a visionary by all. Well, almost all, given that Ken at Popehat has yet to forgive him for throwing chalk at him in evidence class.  But Ken aside, Nesson saw the future of the internet well before most. 

That’s really something.  If the rest of us have one novel idea in our lifetime, we’re way ahead of the crowd.  Charlie Nesson thought differently than the rest of us.  He saw things that we couldn’t, wouldn’t, see. 

This is why his invitation to add his brilliance to the defense of Joel Tenenbaum against the hated RIAA, the storm troopers of the music industry, was greeted with such excitement.  Aside from the outrageously draconian penalties exacted by the RIAA with Congress’ blessing, this was where old school copyright, the ability of a creator to earn money from his work, met new school freedom to enjoy the intellectual property of others without compensation. 

It was a disaster.  From the New York Times post-mortem :

The problems for the case, however, started well before the first day of trial; Professor Nesson’s court filings and tactics were decidedly informal and offbeat. As part of his almost obsessive desire for transparency and documentation, he posted a recorded telephone conference call with the judge and industry lawyers on his blog, and even posted e-mail messages from friends discussing case strategy.

The crucial blow came on the stand, when Professor Nesson encouraged Mr. Tenenbaum to admit freely that he had downloaded and shared songs, after having denied it in depositions, “because it’s the truth,” Professor Nesson said, stripping the case to the core issue of the law’s unfairness. Judge Gertner essentially declared the case over, directing a verdict against Mr. Tenenbaum and leaving the jury to decide only the penalty.

The $675,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.

It’s been suggested that Nesson, 70, was past his prime and had taken on more than he could handle.  Unlike TV trials, the real things are enormously taxing. They take longer than an hour.  They use rules that TV ignores.  They are about people and facts rather than theories and visions. 

To say that Charlie Nesson blew it big time is both an understatement and, in all likelihood, wrong.  Sure, on a practical level, Nesson’s defense of Tenenbaum was a nightmare.  From his papers to his opening to his examination to his casual attire, he was an epic failure.  But I doubt that was his purpose in serving Tenenbaum. 

I suspect that Nesson saw Nancy Gertner’s courtroom as a laboratory to test his theories, his approaches, his novel ideas.  He envisioned a trial of substance over form, of a larger truth than the petty details that concerned the RIAA.  He saw a showdown between the forces of cash and carry and the freedom to exchange everything, from ideas to music, because the internet could.  Once a song was created, it could be heard a billion times without  any additional cost to the creator and enjoyed through a medium that allowed it to be shared at will.  The creator’s work was done, and it was no skin off the creator’s nose whether it was heard by one or a billion people.

Allow me to say at this juncture that I do not agree with this view.  Whoever creates something is entitled to benefit from it, and the idea that the world is entitled to freely enjoy it simply because technology has made it easy to do so is absurd.  We are all able to easily break a glass window, but that doesn’t entitle us to enter other people’s homes at will and take whatever we like.  Denying the creator the opportunity to capitalize on his creation to the maximum extent the market will bear is his right.  I realize that kids who want a free ride have rationalized their theft to death, but it’s still theft.  And I realize that thieving kids think I don’t get it.

That said, I don’t begrudge Charlie Nesson his attempt to sell his theory on a bigger stage.  The problem isn’t that his vision is wrong, but that he lacked the skills necessary to make the tune in his head play in the courtroom.  First, Judge Gertner shut down his fair use approach.  Then, he got slam-dunked when Tenenbaum readily admitted to engaging in the conduct complained of, ending the liability phase of the trial.  In other words, his lack of practical knowledge and skills served to deprive him of the opportunity to make his point, the essence of his involvement.  Here he was on the big stage, and his fly was open. 

In my own prickly way, this is a problem I’ve been trying to address for a long time.  Most lawyers, and worse still, most judges, have a pedestrian understanding of the law.  It’s exercised by rote, with knee-jerk arguments and decisions that can be predicted from miles away.  Calendars are cattle drives. Defendants are cattle.  The rest of us just drive the cattle forward to their slaughter. 

There are some, both lawyers and judges, who have the skills and the will to fight the inertia of the system, the think daring thoughts, to understand why one case, one defendant, differs from another.  But we’re constantly bumping up against the others, the ones who won’t make the arguments, or read the papers, or engage the brain before the mouth says “denied”, in order to keep the herd moving forward. 

We would all be far better off if we could break this cycle of mindless herding.  The Charlie Nessons of the world be the ones to challenge our cattle drive mentality.  But the Charlie Nessons of the world need add their brilliant thinking to the skills and muscle of lawyers who know how to translate their vision into courtroom reality.  We are better working together than we are alone.  In our quest for a better system, both the ideas and the skills must come together. 

This point arose just yesterday in an exchange with GW Lawprof Dan Solove from Concurring Opinions.  He was annoyed with me for being critical of the isolation of law professors from practitioners. Against his better judgment, he let me have it.  I’m glad he did, because it was one of the few honest exchanges we’ve had on the subject, and allowed me to let him know that I’m annoyed as well as the lawprofs who shun and ignore practitioners have an aversion to engaging practitioners in discussion, it being too likely to end up in mud-wrestling than understanding.

There are a number of reasons for this, as I see it, but spelling them out seems to just inflame the situation.  Academics use a different language and tone than practitioners, and they find us offensive rather than staightforward.  When they disagree with each other, they do so by nuanced complements, or at worst faint praise.  We tend to be more direct, which is viewed as “vehement contempt.”

It was my hope that the conversation will continue, an open dialogue about how the law, the focus of both sides, will be better for all if we can combine the theory with the practice.  Practitioners complain that our system is stuck, unjust and ineffective at achieving its goals.  Some fall back on vapid platitudes to justify this (“it may not be perfect but it’s the best their is”) and would happily spend their careers defending a failed status quo.  Others want to improve the system, finding perpetuation of a broken system an unacceptable way to spend one’s life. 

Dan has yet to reply to my rejoinder, and no other lawprof has jumped into the breach.  Perhaps this is just more evidence that scholars deem practitioners unworthy of their time.  Perhaps this is evidence that they have no response, and prefer to hide inside the Academy rather than look us in the face.  Perhaps this is just means that they have more important things to do than write comments on a trench lawyer’s blawg.

But given the wealth of ideas that flow around the lawprof blawgosphere, it’s a terrible shame that this separation between the theoretical and the practical persists.  Let them test their theories under the crucible of practical scrutiny.  How many more symposia amongst their own will serve to bring change to the law?  Is this all about tenure, or is there any real hope that they can improve the system, the human condition?  Then why not do something about it?

The law professors paid very close attention to Charlie Nesson’s defense of Joel Tenenbaum
.  It must have been painful to watch.  One of their own was finally at the helm, and steered the ship straight into the shoal.  Did you learn anything from Charlie Nesson’s experiment?  Anything at all?

Then let’s talk about it.  Working together, we might actually make things better for people.  Trust me, actually helping people is better than getting a law review article published.  And it matters.  I hope to hear from Dan Solove.  I hope to hear from all the lawprofs.  Are you tough enough to take the chance?  Charlie Nesson was, and you have to give him credit for that.