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
    Doctor Strange, 9 Dec 2009 @ 9:49pm

    Re: Re: Re:

    The judge disagrees that it's a non-issue. The judge did not go so far as to say that it would make all the difference, either, but that it might at least factor into the "fair use calculus:"

    Before that time, it was hard to obtain individual songs in digital format; most copyrighted music was instead offered on compact disc and sold only as multi-track albums. In order to get one song, a consumer had to pay for ten to twenty separate tracks, many of which she might not want. In order to translate this music into a digital format, she then had to transfer the contents of the CD onto her computer (a practice commonly called “ripping”), where it could be easily stored, played, or placed on a portable music device. The considerable advantages of digital media are not difficult to discern. File-sharing software, by contrast to CDs, made individual songs directly available as digital mp3 files. Music listeners could get exactly the songs they wanted, in exactly the format they wanted -- an alternative that the plaintiffs did not offer consumers for several years.
    These benefits are difficult to deny, but their role in this particular fair use analysis is less clear. The advantages of digital music plainly touch on some of the very concerns that the Supreme Court acknowledged in Sony: For instance, the ability to “space-shift,” by moving music to a more compact and portable medium; the ability to obtain individual tracks, increasing consumer choice; and the ability to sample music prior to purchasing it. See 464 U.S. at 454 (observing the time-shifting virtues of Betamax recording, increasing the public’s access to television broadcasts). In other circumstances, all these factors might belong in the fair use calculus, as the court sought to weigh the net public benefit of this use in the absence of a viable commercial market. See Berkman Center Br. at 36-37 (document #177-3).

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