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File-Sharing Lawyer Says Judge Screwed Up

No sooner did U.S. District Judge Nancy Gertner issue her opinion this week blasting Harvard Law Prof. Charles Nesson for his "truly chaotic" defense in the file-sharing lawsuit against Joel Tenenbaum than Nesson struck back. In an interview with Computerworld, Nesson brushed aside the judge's criticisms and said it was she who got it wrong and that he will seek a new trial.

"Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web," Gertner wrote in her opinion. Even though she did everything in her power to permit Nesson to make his best case for a fair-use defense, she said, he "would have none of it," instead using "a version of fair use so broad that it would swallow the copyright protections that Congress created."

But in the judge's criticisms of him and rulings on fair use, Nesson sees grounds for a new trial, he tells Computerworld:

Nesson said he will also use Gertner's refusal to permit the fair-use defense in the case and other "major evidentiary errors" as a basis for seeking a new trial. One example of such an error was the judge's refusal to allow the jury to see the entire contents of a letter Tenenbaum had written to the RIAA offering it $500 by way of a settlement, Nesson said. Her refusal resulted in the jury walking away with a false impression of Tenenbaum's commitment to settling the case, Nesson claimed.

He said he will also argue that the copyright statutes used in the case were not meant to be used against individuals, but against commercial enterprises that break copyright laws. "We will be asserting the unconstitutionality of applying these bankrupting damages to individual persons like Joel," Nesson said.

"How successful such arguments are likely to be remains to be seen," notes Computerworld writer Jaikumar Vijayan. One unabashed skeptic is Mike Masnick at Techdirt. "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," Masnick writes. "At some point, one hopes that Tenenbaum himself will realize this and drop Nesson and find someone who can actually represent his interests."

A hearing is scheduled for Jan. 4 on Nesson's motions for a new trial and challenging the constitutionality of the $675,000 damages award.

Posted by Robert J. Ambrogi on December 10, 2009 at 12:45 PM | Permalink | Comments (0)


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