Wednesday, April 01, 2009

Harvard legal team gives disappointing answer to interview question by p2pnet

I was reading an interview conducted by Jon Newton of p2pnet, in which he was asking questions of the SONY BMG Music Entertainment v. Tenenbaum litigation team.

This question, and the extremely disappointing answers it elicited, jumped out at me:

p2pnet: Will you be taking on other cases?

Matt: We [a]ren’t sure whether we’ll take on any other cases. For now we’re focusing on defending Joel to the best of our abilities, which will set precedent that will help others.

Debbie: We have been approached by a variety of people who are desperate for representation against the RIAA; surely, there is no shortage of individuals who need legal help and cannot afford it. Unfortunately, we’re a team of only 6 law students who have classes and other full time commitments. Because this case has attracted so much media attention, we hope that we’re helping to set a positive precedent that will directly help all those who we can not personally serve. While we have received some heat from advocates for not taking on more clients, we just don’t have the manpower or bandwidth to take on anymore at this time. We hope that by making a big splash and by defending Joel to the best of our abilities, we’re serving far more than a single client.
Complete interview

[Ed. note. I am appalled. There are hundreds of other people out there, many of them totally innocent, who have no legal representation at all; there are scores of lawyers out there who have made enormous financial sacrifices to try to help some of these people; and Harvard Law School and the Berkman Center for "Internet and Society" -- who waited more than 5 years to represent a single defendant, and then only at the request of the presiding judge -- can't do better than that? The RIAA lawyers are probably relieved to know that Harvard Law School's "clinical" programs are not available to any other of the good people who can't get legal representation in Massachusetts, but if I were a student at Harvard Law I would be feeling both frustrated and humiliated, right about now. Here they are handed a golden opportunity to do that which most of us went to law school to do, and their school is just passing it by. Sad. -R.B.]


Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

10 comments:

Anonymous said...

They may indeed be about to set precedents that will help others. The question is "which" others. At the rate they are going, those "others" will be the RIAA and its big four members.

Anonymous said...

Those of us of a certain age, including you, Ray, may remember this song about another guy named Charlie from Boston. I think Charlie has now "returned".

http://www.youtube.com/watch?v=3VMSGrY-IlU

HSL students should listen.

Anonymous said...

I can sympathize with the six students. Should Harvard and the Berkman Center open more clinicals to help more people? Definitely. But please, don't get down on the six who are currently doing their best to both manage this trial and their school schedules. I think the question that was asked was directed towards those six, and not the Center in general. Which is perhaps where p2pnet needs to go for a better (and more satisfying) answer.

Kevin said...

As a 2L in law school juggling 2 jobs and law review I understand where these fellow law students are coming from. There is only so much time in the day and the Harvard law clinic can't take on more cases than they have students in the clinic. This just means other law schools should step up and offer up some of their clinic hours to help these clients.

Ray Beckerman said...

Everybody raise your hand who thinks that there are only 6 students at Harvard Law School available to work in legal clinical programs.

Anonymous said...

How many of you think that RIAA cases are the ONLY cases worthy of The Harvard Clinic's time? Lets be realistic, sure there are more students in clinic (though less than you probably think), there are many low income people with legal help needs.

Harvard Law Student said...

The RIAA is an important issue, but there are many important issues that Harvard Law students are working on around the world and in hundreds of subject areas. Everyone has a passion. Why do you continue to undermine the passion of the 6 students who are giving it their all? It's insulting.

Ray Beckerman said...

Dear "Harvard Law Student"

Your question is disingenuous in the extreme. Nowhere have I "undermined the passion of the 6 students". If you have a properly framed question I will be pleased to answer it.

Why am I skeptical that you even are a "Harvard Law Student"?

Harvard Law Student said...

It is not a law school's responsibility to a) defend every client who remains unrepresented against the RIAA or b) to force its students to sign up for clinical programs. Certainly, clinicals are fantastic learning opportunities, but they are not required -- anywhere. Your continual criticism against HLS for not being MORE involved or getting involved sooner undermines the work they are trying to achieve.

Also, why are you so hard on Harvard Law School and not on *every* law school and *every* law student who has been unwilling to defend these clients?

You blame Harvard for not doing *more* but perhaps your criticism should be focused at either any of the 196 law schools who have done nothing or any of the thousands of lawyers in the country who do no pro bono work at all.

Ray Beckerman said...

"Harvard Law Student" said:

"It is not a law school's responsibility to a) defend every client who remains unrepresented against the RIAA or b) to force its students to sign up for clinical programs.

Agreed.

Certainly, clinicals are fantastic learning opportunities,

Agreed.

but they are not required -- anywhere.

I don't know for sure, but I'm pretty sure you are wrong about that. I believe some schools do require clinical work. But I could be mistaken. If anyone out there is from Franklin Pierce or Northeastern, don't your schools require clinical work?

It should be mandatory to participate in either a clinical program, or on-the-job legal training, while in law school.

Your continual criticism against HLS for not being MORE involved or getting involved sooner undermines the work they are trying to achieve.

How is that?

Also, why are you so hard on Harvard Law School and not on *every* law school and *every* law student who has been unwilling to defend these clients?

Your question is deceptive. It implies that there are law students who are unwilling to defend these clients. As near as I can tell, there are thousands and thousands of law students all across the country who would love nothing more than to be able to defend these clients in a clinical program under faculty supervision.

I don't know why you opine that I have been 'hard' on Harvard Law School, but if you want to know why I have been a bit critical, my reasons include the following:

1. From those to whom much is given, much is expected. Harvard has much more money than all the Big 4 record labels combined. And in size it is a large school. And the situation in Massachusetts is dire due to Judge Gertner's error in consolidating the cases, stacking the cards in favor of the RIAA even more so than they are stacked in other jurisdictions.

2. The one case Harvard is handling is a relatively minor case, one in which the defendant admits having done the file sharing of which he is accused. Meanwhile tens of thousands of innocent people have not been able to find legal representation.

3. The chest thumping and self-congratulation that the "joelfightsback" team has engaged in is inappropriate; its website implies that Joel Tenenbaum is the first defendant to have fought back, and that the rest of the world is "following" them. Nothing is farther from the truth, and it is a grave insult to the many people who have sacrificed so much to fight the RIAA over the past 6 years. Many other defendants and lawyers have been fighting back for years, long before Harvard entered the fray.

4. Harvard didn't enter the fray until after a Judge dragged them into it.

5. Too many sloppy legal errors are being committed. This does a grave disservice to the fine lawyers all across the country who have done outstanding work trying to stop this monster. Every time there is a decision resulting from a defendant's not having competent counsel, that decision gets thrown in the face of the rest of us by the RIAA drones, and cited as precedent.

6. There are 39,999 other defendants -- and more to come -- who may be gravely impacted by those errors.

7. Copyright law may be gravely impacted by those errors.

8. I believe that more than 6 students have worked on the case. But even you are right, a law professor and 6 students are more than capable of taking on a couple of more of these cases. Each case has cookie cutter pleadings, a cookie cutter investigator's report, a cookie cutter expert's report, a cookie cutter approach to discovery and settlement, entirely predictable strategic decisions, and robotic plaintiffs' legal arguments. Mr. Oppenheim himself has described his approach as "programmatic" (read "boilerplate").

9. Your question is deceptive in implying that I have criticized the law students for not taking on more cases; that is absolutely false. It is not their decision. And I know that there are thousands of law students, all across the country, who would give their eye teeth to have the opportunity to be in this fight. Righting a wrong like this is what most of us went to law school to do.

You blame Harvard for not doing *more* but perhaps your criticism should be focused at either any of the 196 law schools who have done nothing or any of the thousands of lawyers in the country who do no pro bono work at all.

Of course the other Massachusetts law schools should be sharing the load. Has Harvard done anything to make that happen?

I am critical of the larger firms who have failed to step in and provide pro bono assistance during this crisis, other than those of course who have bona fide conflicts that legally prevent them from stepping in; it is evident that some large firms who do not have such conflicts, are staying away merely because they hope to get business from the Big 4 record labels some day.

I am not critical of the small firms and solo practitioners who cannot afford to put in $500,000 of time on a single case, without getting paid for it. And neither should you be.