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

Wed, Dec 9th 2009 11:59am — Mike Masnick

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.

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

26 Comments

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Anonymous Coward, 9 Dec 2009 @ 12:11pm

Nesson's poor line of logic pretty much mirrors much of the stupidity out there in the world of piracy. It's amazing that some of these people can walk and chew gum at the same time.
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- :Lobo Santo (profile), 9 Dec 2009 @ 12:17pm
  
  Re:
  (Hello Coward! Welcome to the Internet.)
  
  Ah, opinion is it? I can do opinion. Let's see...
  
  Here we are then:
  You mother dresses you funny.
  People named Coward are generally poor lovers.
  What's that ugly thing on your neck? Oh, sorry, it's your face.
  
  Well, that was pointless but fun. Do you have anything worthy of discussion to contribute, or are you just fishing?
  (Also, you might want to do a Google search and see if there's a Cowards Anonymous to help you stop being an Anonymous Coward.)
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  - Anonymous Coward, 9 Dec 2009 @ 12:31pm
    
    Re: Re:
    Seriously. Try a new line than "Hello Coward".
    [ link to this | view in chronology ]
    - Anonymous Coward, 9 Dec 2009 @ 12:56pm
      
      Re: Re: Re:
      But that's what we are. We are cowards.
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  - Lobo Santo's Ugly Dog, 9 Dec 2009 @ 3:02pm
    
    Re: Re:
    In nice terms, screw you.
    
    I made an observation, and it's true: Much of the goop Nesson tries to pile into the court is the copyright minimalist's talking points, and the judge pretty much knocked them all down. Honestly, this guy makes Mike look mainstream, and Mike is pretty darn extreme.
    
    You know you are in trouble when even people who share your point of view are calling you out.
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- Anonymous Coward, 9 Dec 2009 @ 12:34pm
  
  Re:
  So in other words, you have absolutely nothing valuable to add to the conversation?
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Marcus Carab (profile), 9 Dec 2009 @ 12:27pm

Uh, so, is the lawyer now doing two things from the judge's original ruling (focusing on fair use, taking the 'no legal option' tack) but claiming he was doing them all along and the judge screwed up - despite the judge *specifically calling him out* for not doing those exact things?

That's just weird. You know, I almost never used the word "disingenuous" before I started commenting on IP issues, but now it's my favourite adjective of all time.
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harbingerofdoom (profile), 9 Dec 2009 @ 12:30pm

id say AC#1's comments pretty much mirror those ignorant of fair use and consumer rights in a digital age. im amazed those people can manage to push a power button on anything requiring electricity without electrocuting themselves.

see? i can make wild idiotic generalizations that have little basis in reality too!
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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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- bigpicture, 9 Dec 2009 @ 4:25pm
  
  Re: Fair Use
  "Fair Use" as a minimum should allow the creating of a "back-up" copy, or the coping to a different media format. Presuming that the original is a so called "legal" copy. Now there are a lot of other issues such as the use of snippets or clips as to when "Fair Use".
  
  A very murky scenario, and then there is the equally murky issue of if and when "making available" applies. And should the law make a clear distinction between the downloader and the uploader etc. Because after all any libraries reason to be is "making available".
  
  And if only the downloader is perpetrating a crime, then what is sufficient evidence that downloading actually took place? For instance I have music on my PC, not normally available to the public as far as I know, but if someone broke into my PC and downloaded some songs (equivalent to break and enter) then am I liable for breach of the DMCA?
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- 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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  - Doctor Strange, 9 Dec 2009 @ 6:44pm
    
    Re: Re:
    This is true in general. However, Congress has purposefully left fair use vague and delegated its further definition and interpretation to the courts. While I would certainly prefer legislative clarity, I will accept judicial clarity seeing as that is how Congress has set things up for now..
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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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- Mike Masnick (profile), 9 Dec 2009 @ 1:09pm
  
  Re: screwball tactics aside....
  That said, Nesson's conduct had naught to do with the outcome of this trial.
  
  It does in that he encouraged Tenenbaum to fight on, rather than settle.
  
  It does in that he did not make a reasonable defense and made it easier for the jury to justify high fees in response.
  
  It does in that he did not raise defenses concerning actual damages.
  
  It does in that, as the judge noted, there may have been limited fair use claims that he could have made.
  
  But the bigger issue isn't the outcome of the trial, so much as the fact that Nesson's defense makes it look like the RIAA actually has a strong case in most instances, when it does not.
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  - C.T., 9 Dec 2009 @ 1:23pm
    
    Re: Re: screwball tactics aside....
    Mike...
    It does in that he encouraged Tenenbaum to fight on, rather than settle.
    
    What leads you to believe that it was Nesson and not Tenenbaum who wanted to press on in spite of the fact that it was almost certain they would lose? How do you know Nesson didn't urge Tenenbaum to settle?
    
    It does in that he did not make a reasonable defense and made it easier for the jury to justify high fees in response.
    
    This kind of gets to my point... given the facts of the case, there was no reasonable defense that could have been presented. It was an extremely clear case of infringement, given Tenenbaum's admission that he was the person who downloaded the files and knowingly left them in his shared folder.
    
    It does in that he did not raise defenses concerning actual damages.
    
    This isn't a defense. Proving damages is not an element of copyright infringement.
    
    It does in that, as the judge noted, there may have been limited fair use claims that he could have made.
    
    If you read the opinion in light of the actual facts of the case, it is quite clear that Tenenbaum's conduct would not qualify for fair use under any of Gertner's hypotheticals. Again... that is my point. It seems unfair to blame Nesson for not litigating a set of facts that simply didn't exist.
    
    But the bigger issue isn't the outcome of the trial, so much as the fact that Nesson's defense makes it look like the RIAA actually has a strong case in most instances, when it does not.
    
    I am not buying this. How does this case bear on other defendant's whose factual circumstances might be totally different?
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    - Doctor Strange, 9 Dec 2009 @ 1:40pm
      
      Re: Re: Re: screwball tactics aside....
      That's a good point--that the judge's suggested defenses would not work given the facts. There are some limited defenses that may have been workable but not inconsistent with facts. For example, that the iTunes tracks were inadequate due to DRM, or even that a limited amount of "sharing" increases the market for a work, if you could provide evidence for this. (Although increasing the market for other works may not have been helpful).
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Yakko Warner, 9 Dec 2009 @ 12:42pm

Is this guy a plant?
I'm not usually one for conspiracy theories, but the magnitude of his failure is really making me wonder if this guy isn't a plant for the RIAA and throwing the case just so the RIAA can have a(nother) monumental victory on the books for precedent.
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PRMan, 9 Dec 2009 @ 12:44pm

We used to have a saying...
We used to have a saying about professors... There's a reason they went into teaching about the field instead of working in it.
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Hephaestus (profile), 9 Dec 2009 @ 1:08pm

Just a thought .....
"Center for Internet and Society, said he is also filing a separate motion challenging the constitutionality of the $675,000 fine assessed against Joel Tenenbaum and asking that it be reduced to a more reasonable amount"

Could it be that he screwed up on purpose? To challenge the constitutionality of the fine under the excessive fines clause of the eight amendment? Why didnt he use the fact that to establish a claim of copyright infringement, two elements must be satisfied: (1) ownership of a valid copyright, and (2) unauthorized copying of the original work. RIAA isn't the owner of the copyright, the labels are. With how poor the labels are at keeping records ... well he might have gotten away with it....
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- Anonymous Coward, 9 Dec 2009 @ 10:08pm
  
  Re: Just a thought .....
  Record companies, and not the RIAA, were the plaintiffs. Moreover, they did produce documents pertaining the the two elements you mention.
  
  The mere act of downloading was one basis for the judgement. Evidence that the defendant was also uploading files to other persons was yet another.
  
  A point that is often overlooked is that it is always record companies that bring these suits. It is never the RIAA since it is merely an industry organization and is not a rights holder. In other words, in the language of the law the RIAA lacks "standing" to initiate a lawsuit.
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Anonymous Coward, 9 Dec 2009 @ 3:54pm

I'm not a damned lawyer, but isn't it impossible to get a retrial in a civil case that's already been decided by a jury?
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Anonymous Coward, 9 Dec 2009 @ 6:39pm

"...that Tenenbaum's use was fair use because when he did the file sharing, there was no legal way to purchase that music digitally."

Is it my imagination or faltering memory that leads me to believe that circa 2000 one could obtain music in digital form via something called a CD?
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- Doctor Strange, 9 Dec 2009 @ 6:47pm
  
  Re:
  Yes, but not as individual tracks. That alone still may not have been good enough, but that defense was not raised (possibly because it would not have comported with the facts of the case) and so the issue was not fully explored.
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  - Anonymous Coward, 9 Dec 2009 @ 8:32pm
    
    Re: Re:
    There is no legal obligation for a record company to sell single songs, and that does not create any legal right to just take the single songs.
    
    It's a non-issue.
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    - 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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  - Anonymous Coward, 9 Dec 2009 @ 8:44pm
    
    Re: Re:
    Guess I must also be imagining "CD Singles".
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