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.

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Comments on “Judge Finalizes Tenenbaum Ruling, Trashes Nesson For Chaotically Bad Defense”

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19 Comments
william (profile) says:

Re: 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.

Anonymous Coward says:

Re: 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.

Derek Reed (profile) says:

Re: 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.

Anonymous Coward says:

Re: Re: Re:2 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.

jsf (profile) says:

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. 😉

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