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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Filed Under: charles nesson, damages, economics, joel tenenbaum


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  1. identicon
    Joshua Brown, 30 Jul 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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