Introducing the Infamous Ray Bilderbeck

Hey all.

If you’ve been following the news stories on this case as of late, you’ve probably noticed a couple of apocalyptic tales about how the team is imploding, with the disintegration led by some schmuck called Ray Bilderbeck. So I thought I would put in an appearance on the blog, to explain what’s going on.

Yes, I am the famous Ray Bilderbeck. There is no need to bow. Let’s get some details out of the way. I’m a 24-year-old law student with striking blue eyes and an alluring taste for danger. I was brought into the litigation team from Professor Nesson’s 2009 Evidence class, which he taught during January of this year. Other members of the group have been on board since last year, and so I am hardly the most important student on the team: Matt handles document creation with a zenlike patience; Isaac manages the court docket and sends out administrative e-mails with improbable frequency; Jimmy is pathologically addicted to caselaw research. But because this recent episode seems to have shifted public attention in my direction, I thought it would be a good idea to explain some things about how we are litigating this case, and my own role in that litigation.

You see, here’s the thing.

When he decided to take this case, Professor Nesson was not looking for a group of “true believers” to litigate against the RIAA. He wasn’t looking for a group of students who would agree with him on every issue and do his nefarious bidding without question. Or, I guess, if he was looking for such students, he clearly failed to find them. Each member of our team has a different perspective on the merits of the case, and a different perspective on the arguments that will serve us best in court. Disagreements occur on a daily basis, and none of us are scared of expressing opinions that conflict with what Professor Nesson wants to argue in court. Of course, the frequency with which we disagree with Professor Nesson varies, and I just happen to be one of the more skeptical students. In any event, I am certainly the loudest. Thus, I have become a sort of designated naysayer for the group, a devil’s advocate to argue against whatever the prevailing wisdom of the team might otherwise be. It is a position that I embrace. When Jen or Matt or Professor Nesson says something that I think is wrong, I don’t just politely disagree and forget about it. I scream at them. I ridicule their arguments. I try to knock them down and dance on their bones. Among my people, “schmuck” is a term of honor.

So, yes, sometimes harsh things are said; furniture is thrown; the police are sometimes called. Jimmy currently has a restraining order out on me (just kidding), but we are working things out. We fall down, and we get back up.

And that’s exactly the way things should be. The American legal system is adversarial, it functions by making us fight one another in court. If we are fighting the RIAA, we need to know how they will try to attack our arguments, and how we can evade their attacks. Therefore, we need someone who is willing to argue the RIAA’s position as well as it can be argued. And that’s my job. Ultimately it’s all worthwhile, because we eventually discover what our most effective means of attack and defense will be at trial. The general rule is that if your argument can get me to shut up, it’s a keeper.

I can guarantee you that the RIAA’s lawyers do exactly the same thing when they are formulating their case against us, albeit with less zeal or publicity. The difference is that we are willing to show you guys how we roll. We aren’t doing this in secret, because we want you all to get involved.

Look, this is the deal. Most members of our team grew up in an environment where filesharing over the Internet was considered illegal as a matter of course. When I was sixteen-years-old kid, I hadn’t read the Copyright Act or the Digital Theft Deterrence Act. Back then, I certainly didn’t know what the law actually said, mainly because the copyright laws are not fun bedtime reading. But I had always assumed that online filesharing was illegal. That was what I had been told by the world.

Professor Nesson is trying to change that presumption, both by attacking the copyright laws in court and by spurring a public debate on this issue. But no one has ever claimed that it is going to be easy. Ours is a hard argument to make, and it is an argument that conflicts with many of our instinctive views about the scope of copyright protection. So if we were to pretend that each and every member of our litigation team believed without reservation that noncommercial filesharing was legal under the text of the Copyright Act, we would be insulting your intelligence.

Of course we don’t all think that. Some of us do, and some of us don’t. We’re just as confused about all of this as you are. After all, we’re just ordinary students. But we’re willing to be persuaded. We hope you are too.

Ray