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File-Sharing Judge Blasts 'Truly Chaotic' Defense

A litigation strategy heavy on histrionics and light on substantive law does not play well in the Boston courtroom of U.S. District Judge Nancy Gertner, it would appear. In an opinion issued yesterday in the music industry's file-sharing lawsuit against Joel Tenenbaum, Gertner blasted the defense presented by Harvard Law Prof. Charles Nesson, describing it as "truly chaotic."

Nesson-04 We've written a number of times about Nesson's handling of the Tenenbaum case. noting that his courtroom strategy seemed to leave observers scratching their heads, that descriptions of him range from brilliant to insane, and that Gertner chastised him earlier for favoring his teaching over his client.

In July, on the eve of the trial that ended with a $675,000 verdict against Tenenbaum, Gertner issued an order rejecting fair use as a defense and promising a more detailed memorandum explaining her decision. The opinion she issued this week is her promised follow-up. But before getting to the substance of the legal issues, she devoted several pages to a discussion of her frustration regarding the defense.

Judge Nancy Gertner "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. Because of her concern about the imbalance of resources between the music-industry plaintiffs and Tenenbaum, the judge wrote, she did everything in her power to permit him to make his best case for fair use. She was even prepared, she said, "to consider a more expansive fair use argument than other courts have credited."

But the defendant would have none of it. Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent. ... Defendant's version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.

Nesson not only failed to provide a "colorable legal defense" of fair use, Gertner continued, "he did not come close." He offered little in the way of facts or legal authority, she said. His briefs did not include affidavits, expert reports, deposition testimony or any other evidence that might create genuine issues of fact, she said.

Gertner's final blow was also ironic. "The most telling arguments" supporting her conclusion against fair use, she wrote, "came from an unlikely source -- defendant's counsel himself." As it turns out, early in the case, before Tenenbaum was added as a defendant, Gertner had invited amicus briefs on the substantive legal issues. One such brief was filed by Harvard's Berkman Center for Internet & Society, which Nesson founded, and it was signed by Nesson. In the brief, Nesson wrote, "As a general matter, the fair-use arguments that might be deployed to justify uploading are very weak." Nothing the defense offered subsequently, Gertner concluded, would lead her to rule otherwise.

Posted by Robert J. Ambrogi on December 8, 2009 at 10:57 AM | Permalink | Comments (2)

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