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 @ 12:32pm

    After reading the judge's extensive ruling in full today, it is quite clear how much of a golden opportunity was missed here. Trust me, for all y'all who are sympathetic to the arguments made on this site--this judge gets it. She even addressed arguments that the defense didn't seem to even make.

    The judgment is extraordinarily lucid and worth a careful read. In the end, the conclusion is solid: that fair use will not and cannot vindicate all personal file sharing, but that there are many potential extenuating circumstances that might weigh in. It also (correctly, IMHO) directs Congress to revisit the issue, as the court must still move within the bounds of the statute.

    Mounting a legal defense is not like blogging. You have to take it seriously. You have to bring all your arguments to the table and you have to back them up. Pleas to emotion or "because I said so" or "because it feels right" do not (and should not) hold.

    Do not make the mistake in believing that a defendant cannot present more than one alternative defense, either. You are free to argue, for example, that all personal file sharing should be fair use BUT if not, then it should also be fair use because there were no viable legal buying alternatives. You have to bring it all to the table, though, and dot all your Is and cross all your Ts.

    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.

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