There’s a friend of mine who is an old Texas district attorney, a guy who reminds me of Gary Cooper in “High Noon”, the reluctant hero. Of his many speeches and interviews, there was one that has stuck with me longer than the others and I think is well worth remembering.
If a man wants to make his contrition and take his punishment, you need to accept it. That doesn’t mean he doesn’t get punished, but you need to let him re-enter society. But if he is not contrite, then God help him–because I won’t.
Mr. Tenenbaum made his contrition today in his “Joel Fights Back” trial. He admitted to lying. Under oath. (That’s often called “perjury” and is a crime.) This is remarkable because most of those accused of copyright infringement will tell what they know to be lies, and then continue to stick to their story against all odds.
I don’t know what was going through his mind and I wasn’t there, but from the reporting it sounds like he actually did the one thing that he needed to do at this point in his case–he took control away from the Dean of Cyberspace. Joel finally fought back against the circus and shambles of his very public and disastrous brush with the legal geniuses of the copyleft. He fought back and threw himself on the mercy of the court. A bit late, but he did it.
Mr. Tenenbaum didn’t fight back enough to throw Nesson under the bus (although Nesson richly deserves it) at least not yet. But it may be that he realized that he had gotten some extraordinarily bad–and publicly awful–advice. Mr. Tenenbaum did the one thing that very few of these people seem to want to do–he admitted he did it and he knew he was lying when he lied.
Mr. Tenenbaum made his contrition as best could be expected of anyone who is under the sway of the Nesson–Lessig-Fisher pirate crew. That doesn’t mean he should get off, that doesn’t mean that he should be excused and run home to momma, that doesn’t mean that he should not have to pay the damages the jury awards, that doesn’t mean that he should not have an act of moral turpitude on his record for the rest of his life, but it does mean that his forthrightness should be accepted and he should be forgiven in a moral sense for the future. The past is his own doing and he should be punished for his admitted failures to adhere to societal norms.
Humiliating someone for the sake of humiliation is bullying. I think that when the creative community is presented with someone who publicly (and again under oath) accepts the humiliation of admitting that he determined his own fate through the exercise of his own free will after a lot of sturm und drang to the contrary, we need to accept his contrition–and his punishment by the court. It is a huge step forward.
I don’t know how many times the Lessig-Nesson-Fisher pirate crew must lose these high profile cases before their followers get the message.