Judge Finalizes Tenenbaum Ruling, Trashes Nesson For Chaotically Bad Defense

from the this-is-how-you-screwed-up dept

Mon, Dec 7th 2009 3:01pm — Mike Masnick

It's no secret that almost all of the observers of Charles Nesson's defense of Joel Tenenbaum -- no matter where you stood on issues related to file sharing and copyright -- felt that Nesson's plan was a complete and total disaster, doing himself, his client, and all copyright reformers a huge disservice. It was a complete disaster that made it that much harder for those with reasonable arguments to be heard. And, to date, he's done nothing but continue to suggest that he has no clue how badly he screwed up. It's a true shame.

Today, Judge Gertner finalized the ruling, which will almost certainly be appealed (though, hopefully with better legal representation). But, perhaps more interesting is that Judger Gertner also issued a separate memo where you can basically feel Gertner's frustration with Nesson's defense. In it, she even makes clear that she would have been open to a limited use of fair use to defend certain actions:

"As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited—perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense."

This wasn't a huge surprise -- given that Gertner had previously slammed RIAA tactics, and has also suggested that Congress really needs to change the punishment allowed for copyright infringement, as it appears to be totally unrelated to the actual lawbreaking. So, in her memo, she notes that she gave Tenenbaum every chance to make a reasonable defense, but instead Nesson and his team of law students provided "a truly chaotic defense."

Once again, we're left wondering what Nesson was possibly thinking, and what would have happened if a competent litigator was actually in charge of his case.

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Filed Under: charles nesson, copyright, fair use, joel tenenbaum, nancy gertner

19 Comments

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Brendan (profile), 7 Dec 2009 @ 2:19pm

Lost opportunity
Looks like we had a judge on our side here, who wanted to uphold the fair use defense. That opportunity was wasted by Nesson's terrible argument.

What a shame, really.
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Brendan (profile), 7 Dec 2009 @ 2:20pm

Re: Lost opportunity
Maybe Nesson was a planted RIAA operative! O_O
He sabotaged one of our best chances!
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Anonymous Coward, 7 Dec 2009 @ 3:16pm

Sadly, it sounds like Judge Gertner is trying to write laws from the bench, which is a horrible thing to do. Anything that went that way would be appealed and likely overturned, especially as she has not marked herself as an activist judge.
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william (profile), 7 Dec 2009 @ 3:31pm

Re: Re: Lost opportunity
I was going to suggest the same conspiracy theory, but you beat me to it. XD
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Anonymous Coward, 7 Dec 2009 @ 3:35pm

Can anyone say "Malpractice Suit"?
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william (profile), 7 Dec 2009 @ 3:40pm

Re:
She didn't try to write the law, she is "open to reasonable argument" whereas some people are "close to any argument."

We all know that laws are written loosely for judges/lawyers to interpret it. That's why you see the most obscure laws being applied in places not intented to.

You are using activists in a derogatory way. If you dislike "activists" so much, perhaps you should consider moving to China. The Chinese government will protect you from any "activists" that you are so afraid of.
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jjmsan (profile), 7 Dec 2009 @ 3:42pm

Re:
What the judge is saying is that these arguments are more compeling not that they would have won. Saying an attorney badly represented their client is not saying that you want to legislate from the bench. Besides which there is no such thing as an activist judge. Only those who don't decide in your favor.
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Anonymous Coward, 7 Dec 2009 @ 3:45pm

Re: Re:
It reads like trying to legislate from the bench, effectively telling them to come back to her court the next time with these arguments, and she will expand fair use beyond it's current limits just for them. Some of the areas she is addressing fly directly in the face of case law and the law itself.

That is legislating from the bench, attempting to change the law beyond what is written.
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Matthew Lane Tripp, 7 Dec 2009 @ 4:02pm

The dirt on techdirt.
The Wheel o Buddhist Terms Poster GTD The Art 0 War flashcards/ immersive ethics holographic augmented reality semantic search AI learn tool
http://globalcide.livejournal.com
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interval, 7 Dec 2009 @ 4:43pm

"The Wheel o Buddhist Terms Poster GTD The Art 0 War flashcards..."

Back here on Earth I'm really surprised at how badly Nesson screwed this up, I was looking for him to start putting things in motion that would start "righting the balance" as it were. I can't believe some one of his stature would do this so badly.
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Derek Reed (profile), 7 Dec 2009 @ 4:45pm

Re: Re: Re:
Seriously? Legislating from the bench was your best argument against this one? You're worse than Mike for grasping at straws, can you not even admit that Nesson's defense was inadequate? "Oh no, even the judge said Nesson's defense was bad, activist!"

It doesn't take an activist to see a bad defense and comment on it, and it doesn't destroy the foundation for your arguments if you concede that point. Conceding that would only show that you're human and capable of listening to reason, and it would do well for all of us to admit that once in a while.
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Mechwarrior, 7 Dec 2009 @ 6:28pm

Activist judge or not, if you have a logical bone in your body ,you would have realized that Nesson was bullshitting the entire time.

Im sure his students learned a lot from that failure of reason.
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ChurchHatesTucker (profile), 7 Dec 2009 @ 6:41pm

Re: Re: Lost opportunity
"Maybe Nesson was a planted RIAA operative! O_O "

Y'know, it makes more sense than the alternative.
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Doctor Strange, 7 Dec 2009 @ 9:50pm

Free: Good when you're pirating music on the Internet, bad for your legal defense when you get caught.

(Sorry, couldn't resist).
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Anonymous Coward, 8 Dec 2009 @ 5:25am

Re: Re: Re: Re:
Heh? Where do you get that?

His defence was terrible, laughable, stupid, ignorant, and a total grandstand for a guy that looked mostly like he was trying to fail, in order to set up appeal after appeal to get his wacko ideas all the way to the surpreme court. He failed badly, and screwed his client solid.

That doesn't change that what the Judge is suggsting is that she would rule PAST current caselaw, PAST current law, and find them not guilty based on interpretations of fair use that just aren't there right now. That would appear to be legislating from the bench. Extending rights and changing the rules is the purview of the legislative branch, which she is not part of.
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Killer_Tofu (profile), 8 Dec 2009 @ 6:10am

Re: Re: Re: Lost opportunity
Yes, indeed it does.
I was starting to think that for awhile.
Seriously.
How could Nesson mess up this horribly?
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jsf (profile), 8 Dec 2009 @ 6:41am

Bad Lawyer = Reason For Appeal
I've always said that the badly presented defenses in these types of cases are really just a delaying tactic that give the defendant a really good excuse for an appeal, or maybe even a mistrial. Basically the argument is that your lawyer was so horribly bad that you never had a chance to defend yourself.

The delaying tactic part is about hoping someone can come up with a good defense or precedent is set somewhere else for either tossing the case or drastically reducing the penalties.

But then what do I know. ;-)
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Grae (profile), 8 Dec 2009 @ 9:56am

Re: The dirt on techdirt.
Are you a bot? Because you sure talk like one. Can we nuke this obvious spam ploy to click a link?
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Anonymous Coward, 9 Dec 2009 @ 12:58pm

Re:
"Sadly, it sounds like Judge Gertner is trying to write laws from the bench"

Sounds fair if the media companies try to write laws with their EULAs.
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