Harvard Law professor crowd-sourcing piracy brief

By Eriq Gardner

At Harvard Law School, professors don't give letter grades anymore. These days, classroom work is subject to much stiffer recrimination. We're talking public humiliation, scrutiny from the legal community, and possible sanctions for the professor in charge.

Think we're exaggerating?

As we reported last year, Harvard Professor Charles Nesson has organized his cyberlaw class to defend 24-year-old grad student Joel Tenenbaum, accused of downloading and making songs available over the peer-to-peer file sharing system Kazaa. Since November, the case has taken some interesting turns.

In December, the RIAA signaled a step back from its aggressive anti-filesharing litigation strategy and followed the announcement by voluntarily dropping some of its cases. But not the Tenenbaum case, that little class project aimed at destroying the legal underpinning of the recording industry's claims against alleged copyright pirates.

Instead, the case has escalated. Professor Nesson and his students have successfully pushed a federal court to allow a live webcast of legal proceedings, much to the industry's chagrin.

The case got even stranger when Nesson tried to compel a deposition from the RIAA's former senior vp legal and business affairs, Matthew Oppenheim, said to be the architect of RIAA's overall legal strategy. (The old one, at least.) In reaction, the RIAA sought sanctions against Nesson "for failure to follow basic rules of procedure."

Nesson has now posted his reply brief online in an extremely unusual move. Few lawyers ever share drafts of briefs, and those who do sometimes face ethical questions about confidentiality. One media lawyer, Ben Sheffner, believes this could be just as unprecedented as the news about webcasting. But Sheffner also pans Nesson's "wikibrief," pointing to all kinds of inadequacies, including failure to properly address the RIAA's motion.

Harvard Law School better get this one right. Otherwise, it faces much more than a failing grade.