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Nesson Asking For Retrial In Tenenbaum Case, Claims It Was The Judge Who Screwed Up, Not Him

from the please,-joel,-find-new-representation dept

Dear Joel Tenenbaum: please find new legal representation. And do so quickly. Following Judge Gertner's trashing of Nesson, the Harvard law professor still doesn't seem to think he did anything wrong. Instead, he's blaming Judge Gertner. Seriously. In an interview with Computerworld, he said he's planning to ask for a retrial due to Gertner's errors in the case:
Nesson, however, brushed aside the judge's criticism and maintained that it was she who had gotten it wrong. "I was sorry she did not respond to our fair use defense. She had a considerable amount of trouble rejecting it," he said.
From the rest of the article, it sounds like he wants a do over. He says that he wants to have a new trial where he'll make a brand new argument: that Tenenbaum's use was fair use because when he did the file sharing, there was no legal way to purchase that music digitally. As far as I can tell, that's a misreading of what Gertner said might possibly work as a limited fair use claim, but there's no indication that this is actually true in Tenenbaum's case, and none of that addresses the basic procedural mistakes that Nesson made. It's a shame that Nesson still can't admit that he screwed this up entirely -- despite being told that by plenty of folks who are very sympathetic to his position. At some point, one hopes that Tenenbaum himself will realize this and drop Nesson and find someone who can actually represent his interests.

Filed Under: charles nesson, copyright, fair use, joel tenenbaum, nancy gertner


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  1. identicon
    C.T., 9 Dec 2009 @ 1:23pm

    Re: Re: screwball tactics aside....

    Mike...
    It does in that he encouraged Tenenbaum to fight on, rather than settle.

    What leads you to believe that it was Nesson and not Tenenbaum who wanted to press on in spite of the fact that it was almost certain they would lose? How do you know Nesson didn't urge Tenenbaum to settle?

    It does in that he did not make a reasonable defense and made it easier for the jury to justify high fees in response.

    This kind of gets to my point... given the facts of the case, there was no reasonable defense that could have been presented. It was an extremely clear case of infringement, given Tenenbaum's admission that he was the person who downloaded the files and knowingly left them in his shared folder.

    It does in that he did not raise defenses concerning actual damages.

    This isn't a defense. Proving damages is not an element of copyright infringement.

    It does in that, as the judge noted, there may have been limited fair use claims that he could have made.

    If you read the opinion in light of the actual facts of the case, it is quite clear that Tenenbaum's conduct would not qualify for fair use under any of Gertner's hypotheticals. Again... that is my point. It seems unfair to blame Nesson for not litigating a set of facts that simply didn't exist.

    But the bigger issue isn't the outcome of the trial, so much as the fact that Nesson's defense makes it look like the RIAA actually has a strong case in most instances, when it does not.

    I am not buying this. How does this case bear on other defendant's whose factual circumstances might be totally different?

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