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 @ 12:32pm

    screwball tactics aside....

    Nesson undoubtedly made an ass of himself during this trial. That said, Nesson's conduct had naught to do with the outcome of this trial. This case was a cut and dry instance of infringing conduct...conduct that Tenenbaum admitted to when he said that it was he who had downloaded the files (prior to the trial there was some question as to whether Tenenbaum would argue that someone else might have used his computer to download the files). Given the facts of this case, there is 0 chance that Tenenbaum could have prevailed no matter how stellar his representation. The songs Tenenbaum is alleged to have downloaded and made available to others were all available for purchase online in 2004 (when Tenenbaum allegedly downloaded them), so I am not sure why Nesson all of a sudden thinks he has a fair use argument.

    Mike - Given the nature of the facts at play, what procedural mistakes by Nesson do you regard as undermining Tenenbaum's likelihood of success on the merits?

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