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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