Trainwreck From Team Tenenbaum

from the really? dept

So, I had said I was going to try to avoid talking about the Tenenbaum file-sharing trial until it was over or unless something major happened, but reading through the reports of the first day it's hard not to declare it to be a train wreck in motion. So far, it appears that Charlie Nesson's argument is that "everybody's doing it!" While I obviously don't know the jury and don't know what else (if anything) Nesson has up his sleeve, that doesn't seem like the sort of argument that's all that convincing. In the meantime, I'm going to do something that I almost never do, and actually agree with entertainment industry lawyer Ben Sheffner (who regularly goes out of his way to misrepresent what I write here) and say that it's unconscionable that Nesson/Tenenbaum don't have an economic expert to testify on the "damages" caused by Tenenbaum. It's not like the idea hasn't been brought up before. Hell, we here had a lengthy discussion on exactly that back in March.

There are numerous economic experts out there who could clearly point out that there's no causal evidence that file sharing does any damage at all. There may be a correlation with a decline in CD sales, but not with any other aspect of the music industry -- and recent research is showing that the overall industry is growing. Even some of the music industry's own research is showing the overall industry is growing -- it's just that spending has shifted. It would have certainly been possible to make a strong case that file sharing alone doesn't cause any significant damage to the industry. They could have shown the recent economic studies, along with evidence of many, many, many artists who have embraced file sharing and used better business models to take that attention to make more money than they had in the past. At that point, they could make the case that it's not piracy that's causing harm to the plaintiffs, but their failure to adapt and embrace better business models. And, from that, show that Tenenbaum's actions didn't cause any direct harm.

But Nesson went on a wild goose chase pursuing "fair use" -- an argument that never really made much sense, and did so in a way that annoyed the judge and pretty much everyone associated with the case. He also screwed up getting the witnesses lined up for the case, only requesting that the author of one of those recent studies be allowed to testify long-past the deadline to do so. And, of course, with fair use being knocked out before the case started, and without any experts to present on damages, and a (so far) defense of "everyone's doing it," you have a recipe for disaster. Nesson seems much more focused on putting the whole RIAA strategy on trial, and seemed to forget that there were specific legal questions that had to be dealt with in this case. As with Jammie Thomas, I think that Tenenbaum is a bad case to go to trial, and I dread the results. At this point, the "best" result may be that they flub the case so badly that super high damages are awarded, and you end up with a repeat of the bad PR that came out following the Jammie Thomas trial (though, things are so twisted so far, I wouldn't be surprised if the RIAA themselves to do their best to convince the jury to keep the award low).


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  1.  
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    slacker525600 (profile), Jul 29th, 2009 @ 11:08am

    these defenses have been so irresponsibly bad its almost as if the lawyers are trying to lose.

     

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    Anonymous Coward, Jul 29th, 2009 @ 11:19am

    To be fair...

    I did enjoy Nesson getting one of the RIAA witnesses to admit that Tenenbaum played no part in allowing or denying other people from downloading the songs. Arguing that the "damages" would have occurred with or without Tenenbaum isn't a bad direction to take, at least for convincing a jury.

    Sadly, he didn't keep his focus on points such as this, hence the train wreck.

    Unfortunately, what we have is basically the RIAA given free reign to pin the entire losses of an industry on one person (whomever the defendant in court currently is).

     

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    jjmsan (profile), Jul 29th, 2009 @ 11:39am

    If Nesson falls asleep during the trial they could be going for a retrial because of ineffective representation by the attorney.

     

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    Richard Koman, Jul 29th, 2009 @ 11:48am

    trainwreck

    Here's my perspective on Nesson's lark back into the courtroom:

    Nesson’s (opening) statement provides further proof that Joel’s case will have little to do with the evidence - including the usual MediaSentry evidence as well as Joel’s deposition admissions that he downloaded music via Kazaa - and will focus entirely on some sort of moral argument that downloading ain’t illegal if everybody does it.

    http://government.zdnet.com/?p=5154

     

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    John (profile), Jul 29th, 2009 @ 12:18pm

    I was hoping for more

    I had a great deal of respect for Nesson and the Berkman Center at Harvard, and I'm sure the RIAA did as well (hence no lawsuits were ever filed against harvard students). Unfortunately after the way his team has handled this trial and Jaimmie's, my respect for them has taken a big hit. I assumed he would take a very methodical approach to opening holes in the RIAA net, however it appears he has gone all buckshot and just bouncing around from idea to idea. Very unfortunate for his clients

     

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    Designerfx (profile), Jul 29th, 2009 @ 12:39pm

    don't believe all that you see

    from what I have seen on transcripts so far they have presented plenty of non-fair use arguments. Don't assume this is just fish in a barrel, lawsuit's over. They already had mediasentry admit they have no evidence under oath so unless the jury is idiotic, RIAA has nothing.

     

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  7.  
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    Hephaestus (profile), Jul 29th, 2009 @ 12:45pm

    Mike have a question......

    The following line from the article contains the word "illegally"

    "One of the main differences between Tenenbaum and Thomas-Rasset is he has admitted sharing and downloading music illegally."

    wouldnt illegal be criminal?

     

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  8.  
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    Dark Helmet (profile), Jul 29th, 2009 @ 12:49pm

    Re:

    Slacker, I believe you might just be on to something there...

     

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  9.  
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    peter (profile), Jul 29th, 2009 @ 12:54pm

    Nesson's lawyering

    Nesson's "strategy" is one that drives any experienced lawyer, including me, crazy. He's not trying his case; he's trying "file sharing" as a practice. As he said in the interview Mike links to, he's "defending the internet."

    There are arguments that have a shot -- the excessive damages may be a "walk in the forest" (Coward's words), but it's not frivolous. Instead, Nesson is counting entirely on the jury rising up in some populist disgust at the RIAA, ignore the law, and declare Tenenbaum not "guilty" (or, really, liable -- it's a civil suit, not a criminal prosecution). It happens. It's called "jury nullification"; but I'm afraid Nesson's been too long in the ivory tower.

    Experienced lawyers try each case on its own facts. Nesson could win the case on his facts (and could lose it -- it's a very difficult one to win on his facts). But in distracting from those facts to general defense of "the internet" is to take the jury away from the facts.

    And I'm sorry, but downloading music on the internet is not a since qua non of the internet as I know it. Again, he's arguing that content filters are a threat to the internet as we know it. He may be right. BUT THE USE OF CONTENT FILTERS IS NOT WHAT IS ON TRIAL.

    Sheesh. I share the disappointment in Nesson, the conversion from being a Nesson admirer to having contempt for him.

     

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    Mechwarrior, Jul 29th, 2009 @ 12:56pm

    Nesson shows that suing students of universities with "respected" law schools is as easy as taking candy from a deaf,blind and mute baby.

     

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    DJ (profile), Jul 29th, 2009 @ 1:41pm

    Re: Mike have a question......

    Technically speaking, yes. However, depending on the circumstances of that admission, the prosecution still might not be able to use it. I'm not a lawyer, so I can't give any examples, but there are always loopholes....

     

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    Anonymous Coward, Jul 29th, 2009 @ 4:03pm

    My bootstrap detector went off!

    "nd recent research is showing that the overall industry is growing. Even some of the music industry's own research is showing the overall industry is growing"

    Mike, caught you playing fast and loose with "facts". The second link (the UK study) is particularly misleading because it looks at overall sales for music in all it's forms including concert tickets, in a market where ticket prices have more than doubled in 10 years. Your links aren't lies, but they are a nice way of misusing data as support here.

    If you separate out the increases in ticket prices in the last 10 years, and then re-check the numbers, you would see that music sales haven't increased in the last 10 years at all, where as they were increasing worldwide at about a 10% clip before that (if I remember the numbers correctly). Public consumption of music is at an all time high, yet sales of music (CDs, digital downloads, and all that) hasn't increased at all. So it is pretty easy to show that piracy in all it's forms comes together to have at least some effect on music sales. It would be very wishful thinking to assume there is no effect.

    Now, you could argue that increased exposure is in part responsible for the ability for ticket prices to concerts to increase, but that would probably be a pretty tough thing to prove in reality, it would be speculative and difficult to get into court.

    My have the weird feeling is that Nesson isn't working for his client, he is working to have a case that can be appealed so that he can one day stand in front of the 9 wise men (and women) of the Surpreme Court, That would certainly look good on his resume, no?

     

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  13.  
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    Spyder, Jul 29th, 2009 @ 5:44pm

    Re:

    That's supply and demand in action. There are a limited number of seats and they go to those willing to pay.

     

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  14.  
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    Anonymous Coward, Jul 29th, 2009 @ 5:52pm

    Re: Nesson's lawyering

    I think in the end what makes this worse is this can become a true landmark case. A loss here, combined with the Jammie Thomas thing is a very powerful hammer that the RIAA and MPAA could use to widely attack file sharers. This isn't scared people settled out of court, these are cases running through the system and coming back with a verdict (even if they are civil, not criminal).

    Nesson is at this point all but handing "the industry" a slam dunk.

     

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  15.  
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    Fushta, Jul 29th, 2009 @ 6:58pm

    Re:

    The lawyers are really double-agents for the RIAA. They are throwing the case. What else can explain their complete incompetence?

     

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  16.  
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    Anonymous Coward, Jul 29th, 2009 @ 7:34pm

    Re: Re:

    I think of it as a key moment where all of the wishful thinking of those who support file sharing goes out the window because it is shown to have no basis in law. What most people here (and other places) do is make a vague and wide appeal to "what is right", but what is not defined as right in legal terms.

    Nesson is using most of the arguments used when there is no judge, no jury, no legal implications. But without a basis in law, he is not only (likely) to lose the case (absence of a good defense), but also to set the legal standard by which more actions can be taken against most people later.

    The people from Torrent Freak should be tarring and feathing this guy by now.

     

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  17.  
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    ToySouljah (profile), Jul 29th, 2009 @ 10:01pm

    Re: Nesson's lawyering

    Well, I'm glad to see someone mention Jury Nullification :)

     

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  18.  
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    Marcia Neil, Jul 29th, 2009 @ 11:43pm

    Re: Mike have a question......

    Hand-picked patsies will do what's suggested to them, especially if they can't (for some reason such as hazing) think of a reason why not; therefore, is the action illegal or is the suggestion method? 'Willing' patsies can acknowledge that ther actions are unorthodox, but are perhaps justifiable when file-sharing to, say, generate some sound spectrographs and free some stage-bound marionette performer(s) from the sing-along expectations of others.

     

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  19.  
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    PaulT (profile), Jul 30th, 2009 @ 1:40am

    Re:

    "The second link (the UK study) is particularly misleading because it looks at overall sales for music in all it's forms including concert tickets, in a market where ticket prices have more than doubled in 10 years."

    Why is that misleading? The public haven't got more than double the amount of disposable income they had 10 years ago. They're just choosing to use more of it to buy concert tickets - which could not be supported at high prices if the public were not willing to pay. Maybe you'd argue that they're just making a larger profit by selling to less people, but that makes no difference to the overall industry's viability.

    "Public consumption of music is at an all time high, yet sales of music (CDs, digital downloads, and all that) hasn't increased at all."

    That's usually the core of Mike's arguments here. Rather than suing potential customers, killing new business ideas and making all their products less valuable, they should concentrate on business models that don't depend on selling the music itself.

    As you said yourself, public consumption of music is at an all-time high. That's not a problem, unless your business models depend on selling the stuff that's less popular. Switch to selling the stuff that's profitable, and you make a profit; try to turn the industry back 15 years through idiotic legal tactics and watch the potential profits get pissed away...

     

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  20.  
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    Joshua Brown, Jul 30th, 2009 @ 4:20am

    Nesson Setting Up Case for an Appeal

    I think that Nesson may be unconcerned about the quality of the defense he provides here. Nesson wins either way in advancing his ultimate objectives, regardless of whether Tenenbaum wins or loses at trial.

    1. If Nesson did by some fluke actually win this case based on his fluffy "this kid's not so bad, you know?" arguments, people will hail him as a brilliant trial strategist and a bold innovator. And they'll belittle the RIAA's overall litigation strategy because it couldn't even overcome the haphazard and well-baked type of defense that Nesson is advancing.

    2. Nesson probably does not expect to win, and that will advance his goals anyway by ensuring that Tenenbaum is hit with a substantial damages award. (I know that, ethically, Nesson would be running afoul of his obligations to uphold the professional code of conduct. But unless he announces to everyone that he did not care whether his client won or lost at trial, he can easily get away with it. I'm not advocating such a professional posture; just pointing out that anyone who adopted such a posture would not need to fear any professional disciplinary consequences.)

    Once the damages are calculated and they result in multimillion-dollar liability, then Nesson has his perfect test case for arguing the unconstitutionality of the statute itself. Sure, he could have advanced that argument without his client being socked with a large damages award. But then any judge (either at trial or on appeal) would use his or her powerful skills at obfuscation and respond to such a constitutional argument (in the absence of any actual assessment of a large damages award against the particular defendant whose case is at hand), "Well, there might be situations that one could imagine in which damages would be so excessive in relation to the harm alleged that they render the statute unconstitutional. But we do not have that case here, and so the Court does not need to address those arguments."

    Given that the judiciary has been increasingly hesistant even to entertain facial attacks on statutes, Nesson is likely setting up this case so that he can argue that in the particular circumstances before the court in the Tenenbaum case (after Tenenbaum has been found liable for millions of dollars), one can see exactly why this statute cannot stand constitutionally. If Tenenbaum gets hit with a damages award on the low end of the scale, Nesson has completely lost the opportunity he is likely seeking, which is possibly his only motivation for involving himself in this case in the first place -- to kill the statute.

    In sum, if Tenenbaum wins despite his counsel's disastrous (or at least, exceedingly peculiar) presentations, not only is that a good precedent for the file sharing advocates, but it also makes the RIAA look foolish. If Tenenbaum loses (and loses big), Nesson has his perfect test case to attempt to bring down the statute as constitutionally infirm. I think it's simply a mistake to think that Nesson is necessarily concerned about whether this trial goes his way; he may actually be relishing the prospect of appealing an enormous award against Tenenbaum.

     

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    ikonoclasm (profile), Jul 30th, 2009 @ 6:53am

    Re: I was hoping for more

    If I were a Harvard student, I'd be a bit more cautious in my online activities. Now that the illusion of competent protection has been dispelled, there's little reason for the **AAs not to go after them.

     

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    Joshua Brown, Jul 31st, 2009 @ 5:00am

    Harvard graduate now, so I needn't worry. And if a law school student need fear attacks for expressing his opinion, he wouldn't have much reason to be proud of his alma mater. It was a conscious choice not to hide my name. Besides, they have bigger fish to fry. And it's not as though Nesson himself does not discuss these scenarios in his classes with just as much candor.

     

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    Joshua Brown, Jul 31st, 2009 @ 5:05am

    Sorry ikonoclasm, I didn't read your subject to realize you were responding to John.

     

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    Joshua Brown, Jul 31st, 2009 @ 5:08am

    Re: jjmsan

    Death penalties have been upheld despite the attorneys sleeping at trial. I doubt Nesson's performance will win anyone a retrial.

     

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    Frank Paynter, Aug 2nd, 2009 @ 3:54pm

    Re: Nesson Setting Up Case for an Appeal

    This makes a lot of sense to me. In fact Nesson advanced the possibility of a judgment re. the constitutionality of huge damages and the judge told him that she'd entertain those arguments after and if damages were awarded. Per Ben Sheffner:
    Judge Gertner previously announced that she will hold a post-trial proceeding to determine whether the size of the award violates the US Constitution’s guarantee of due process of the law. While no federal court has ever invalidated an award of copyright statutory damages as constitutionally excessive, the record labels’ litigation campaign has spurred arguments that the Supreme Court cases imposing limits on punitive damages should be extended to statutory damages, which may contain a punitive element. Tenenbaum filed a motion to dismiss the plaintiffs’ statutory damages claim on constitutional grounds, but Judge Gertner deferred ruling on the issue unless and until there was actually a damages award handed down by the jury.

     

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