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
    Anonymous Coward, 9 Dec 2009 @ 6:25pm

    Re:

    As someone who thinks that fair use is inadequately defined and that increased clarity and scope could preserve the best parts of copyright while limiting the potential for abuse, this outcome is really disheartening.

    You are looking in the wrong place to get that settled. It isn't the courts that will define what is and what isn't fair use, that is something that should be done through the legislative process. Judges don't make the laws, they only interpret them in the face of faces in a case. The Judge's suggestions are out of line, mostly because they are activist comments rather than comments of judgement. She was willing to greatly expand rights beyond caselaw, which would pretty much lead to an appeal directly.

    The ruling, based on the case presented, is sound and complete. Nesson should be ashamed of himself for presenting what appears to be a horrible defence that will leave Tenenbaum penniless for years to come.

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