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Nesson Tries the 'Sins of a Generation' Defense

Observers who attended yesterday's start of the music-downloading trial of Joel Tenenbaum seemed to be scratching their heads in bewilderment over the defense. Admittedly, Tenenbaum's defense lawyer, Harvard Law Professor Charles Nesson, has his hands somewhat tied, given that Tenenbaum admitted in his deposition to downloading the songs and given the 11th-hour ruling by U.S. District Judge Nancy Gertner that Tenenbaum could not use a fair use defense.

So Nesson's defense appears to be that Tenenbaum should not be held accountable for the sins of his generation. "Everyone could download for free," he said in his opening statement. "And millions and millions did. Joel was one of those millions. In this way he's like every other kid. There's nothing that distinctive about Joel."

That quote from Nesson's opening statement came from a report on Ars Technica written by copyright lawyer Ben Sheffner, author of the blog Copyrights & Campaigns, who is covering the trial. He describes Nesson's opening as telling the story "of a digital generation that embraced peer-to-peer networks when they arrived on the scene and shouldn't be punished for sticking with them even as iTunes and numerous other legal, paid alternatives became available."

In contrast, music industry lawyer Timothy M. Reynolds, a partner in the Boulder, Colo., office of Holme, Roberts & Owen, told the jury that Tenenbaum downloaded and distributed thousands of songs without paying for them and continued to do so for years even after he was sued. "We are here to ask you to hold the defendant responsible for his actions," he argued. "File sharing isn't like sharing that we teach our children. This isn't sharing with your friends."

The contrast between the opposing lawyers was not only in their legal arguments. As The Boston Globe describes it, the case "pits Nesson, a self-avowed marijuana user who has tried only four cases (one was the Pentagon Papers case in which he defended Daniel Ellsberg) against a team of battle-tested lawyers for the recording industry." And the Boston Herald adds that Nesson was the only attorney in the courtroom to wear casual clothes and had his opening statement cut off when the trial judge angrily told him he was out of time.

Sheffner describes Nesson's cross-examination of Wade Leak, deputy general counsel for Sony Music Entertainment, as lengthy and interrupted by frequent objections, most of which were sustained.

Indeed, on several occasions "sustained" escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, "I'm just trying to translate this into the Federal Rules of Evidence." And when Nesson, reacting to a sustained objection, explained what he was trying to "say," Gertner cut him off: "You're not supposed to be saying anything. You're supposed to be asking questions."

Sam Bayard, assistant director of the Citizen Media Law Project at the Berkman Center for Internet & Society (which Nesson founded), sat in on yesterday's opening statements and told The Boston Globe that Nesson appeared to be encouraging jurors to engage in a form of nullification. "I think he's arguing [Tenenbaum] did it, [the record companies] are right, but this isn't morally blameworthy; he's just a kid."

The goal of such a defense would be not to avoid a plaintiffs' verdict, but to keep damages to a minimum and steer clear of the fate that befell Jammie Thomas-Rasset in Minnesota, when a jury assessed damages against her of $80,000 per song, for a total of $1.92 million. It may be unorthodox from a legal point of view, but its efficacy will be for the jury to decide.

Posted by Robert J. Ambrogi on July 29, 2009 at 10:56 AM | Permalink | Comments (1)


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