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
    bigpicture, 9 Dec 2009 @ 4:25pm

    Re: Fair Use

    "Fair Use" as a minimum should allow the creating of a "back-up" copy, or the coping to a different media format. Presuming that the original is a so called "legal" copy. Now there are a lot of other issues such as the use of snippets or clips as to when "Fair Use".

    A very murky scenario, and then there is the equally murky issue of if and when "making available" applies. And should the law make a clear distinction between the downloader and the uploader etc. Because after all any libraries reason to be is "making available".

    And if only the downloader is perpetrating a crime, then what is sufficient evidence that downloading actually took place? For instance I have music on my PC, not normally available to the public as far as I know, but if someone broke into my PC and downloaded some songs (equivalent to break and enter) then am I liable for breach of the DMCA?

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