Judge Finalizes Tenenbaum Ruling, Trashes Nesson For Chaotically Bad Defense

from the this-is-how-you-screwed-up dept

It's no secret that almost all of the observers of Charles Nesson's defense of Joel Tenenbaum -- no matter where you stood on issues related to file sharing and copyright -- felt that Nesson's plan was a complete and total disaster, doing himself, his client, and all copyright reformers a huge disservice. It was a complete disaster that made it that much harder for those with reasonable arguments to be heard. And, to date, he's done nothing but continue to suggest that he has no clue how badly he screwed up. It's a true shame.

Today, Judge Gertner finalized the ruling, which will almost certainly be appealed (though, hopefully with better legal representation). But, perhaps more interesting is that Judger Gertner also issued a separate memo where you can basically feel Gertner's frustration with Nesson's defense. In it, she even makes clear that she would have been open to a limited use of fair use to defend certain actions:
"As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited—perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense."
This wasn't a huge surprise -- given that Gertner had previously slammed RIAA tactics, and has also suggested that Congress really needs to change the punishment allowed for copyright infringement, as it appears to be totally unrelated to the actual lawbreaking. So, in her memo, she notes that she gave Tenenbaum every chance to make a reasonable defense, but instead Nesson and his team of law students provided "a truly chaotic defense."

Once again, we're left wondering what Nesson was possibly thinking, and what would have happened if a competent litigator was actually in charge of his case.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    Brendan (profile), Dec 7th, 2009 @ 2:19pm

    Lost opportunity

    Looks like we had a judge on our side here, who wanted to uphold the fair use defense. That opportunity was wasted by Nesson's terrible argument.

    What a shame, really.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Dec 7th, 2009 @ 3:16pm

    Sadly, it sounds like Judge Gertner is trying to write laws from the bench, which is a horrible thing to do. Anything that went that way would be appealed and likely overturned, especially as she has not marked herself as an activist judge.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      william (profile), Dec 7th, 2009 @ 3:40pm

      Re:

      She didn't try to write the law, she is "open to reasonable argument" whereas some people are "close to any argument."

      We all know that laws are written loosely for judges/lawyers to interpret it. That's why you see the most obscure laws being applied in places not intented to.

      You are using activists in a derogatory way. If you dislike "activists" so much, perhaps you should consider moving to China. The Chinese government will protect you from any "activists" that you are so afraid of.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      jjmsan (profile), Dec 7th, 2009 @ 3:42pm

      Re:

      What the judge is saying is that these arguments are more compeling not that they would have won. Saying an attorney badly represented their client is not saying that you want to legislate from the bench. Besides which there is no such thing as an activist judge. Only those who don't decide in your favor.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Dec 7th, 2009 @ 3:45pm

        Re: Re:

        It reads like trying to legislate from the bench, effectively telling them to come back to her court the next time with these arguments, and she will expand fair use beyond it's current limits just for them. Some of the areas she is addressing fly directly in the face of case law and the law itself.

        That is legislating from the bench, attempting to change the law beyond what is written.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Derek Reed (profile), Dec 7th, 2009 @ 4:45pm

          Re: Re: Re:

          Seriously? Legislating from the bench was your best argument against this one? You're worse than Mike for grasping at straws, can you not even admit that Nesson's defense was inadequate? "Oh no, even the judge said Nesson's defense was bad, activist!"

          It doesn't take an activist to see a bad defense and comment on it, and it doesn't destroy the foundation for your arguments if you concede that point. Conceding that would only show that you're human and capable of listening to reason, and it would do well for all of us to admit that once in a while.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Dec 8th, 2009 @ 5:25am

            Re: Re: Re: Re:

            Heh? Where do you get that?

            His defence was terrible, laughable, stupid, ignorant, and a total grandstand for a guy that looked mostly like he was trying to fail, in order to set up appeal after appeal to get his wacko ideas all the way to the surpreme court. He failed badly, and screwed his client solid.

            That doesn't change that what the Judge is suggsting is that she would rule PAST current caselaw, PAST current law, and find them not guilty based on interpretations of fair use that just aren't there right now. That would appear to be legislating from the bench. Extending rights and changing the rules is the purview of the legislative branch, which she is not part of.

             

            reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Dec 9th, 2009 @ 12:58pm

      Re:

      "Sadly, it sounds like Judge Gertner is trying to write laws from the bench"

      Sounds fair if the media companies try to write laws with their EULAs.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Dec 7th, 2009 @ 3:35pm

    Can anyone say "Malpractice Suit"?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Matthew Lane Tripp, Dec 7th, 2009 @ 4:02pm

    The dirt on techdirt.

    The Wheel o Buddhist Terms Poster GTD The Art 0 War flashcards/ immersive ethics holographic augmented reality semantic search AI learn tool
    http://globalcide.livejournal.com

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    interval, Dec 7th, 2009 @ 4:43pm

    "The Wheel o Buddhist Terms Poster GTD The Art 0 War flashcards..."

    Back here on Earth I'm really surprised at how badly Nesson screwed this up, I was looking for him to start putting things in motion that would start "righting the balance" as it were. I can't believe some one of his stature would do this so badly.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Mechwarrior, Dec 7th, 2009 @ 6:28pm

    Activist judge or not, if you have a logical bone in your body ,you would have realized that Nesson was bullshitting the entire time.

    Im sure his students learned a lot from that failure of reason.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Doctor Strange, Dec 7th, 2009 @ 9:50pm

    Free: Good when you're pirating music on the Internet, bad for your legal defense when you get caught.

    (Sorry, couldn't resist).

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    jsf (profile), Dec 8th, 2009 @ 6:41am

    Bad Lawyer = Reason For Appeal

    I've always said that the badly presented defenses in these types of cases are really just a delaying tactic that give the defendant a really good excuse for an appeal, or maybe even a mistrial. Basically the argument is that your lawyer was so horribly bad that you never had a chance to defend yourself.

    The delaying tactic part is about hoping someone can come up with a good defense or precedent is set somewhere else for either tossing the case or drastically reducing the penalties.

    But then what do I know. ;-)

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This