‘Missed Opportunity’ In File Sharing Case? Don’t Believe It; Wired, 12/8/09

David Kravets, Wired; ‘Missed Opportunity’ In File Sharing Case? Don’t Believe It:

"With the $675,000 judgment against Joel Tenenbaum now final, the inevitable finger pointing has begun.

Tenenbaum was only the second person in the nation to be sued by the RIAA for file sharing and to take the case all the way to jury trial, making it a closely watched case. It’s not surprising he lost, given that he admitted to sharing 30 songs on Kazaa and Limewire. But a few commentators have decided that Tenenbaum’s lawyer, Harvard’s Charles Nesson, is to blame for failing to offer the nuanced “fair use” defense invited by the judge...

What’s gone ignored, though, is that the defense invited by commentators and Judge Gertner wouldn’t have helped Nesson’s client in the least. Virtually none of the scenarios laid out in the ruling applied to 25-year-old Joel Tenenbaum, a classic copyright scofflaw who was neither space-shifting nor downloading music otherwise unavailable online.

“For the most part, he was downloading them and sharing them like the rest of the kids — and not particularly for sampling,” Nesson said in a telephone interview. “That is the bottom line.”...

Nesson’s performance wasn’t as stellar as it was in 1971, when he successfully defended Daniel Ellsberg in the Pentagon Papers case. Judge Gertner took the time to upbraid Nesson for his behavior.

“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, adding that Nesson and his defense team of Harvard students mounted a “chaotic” defense.

But if he’d lied about the facts — making Ars Technica and the L.A. Times happy — his client would be no better off.

The other defendant to go against the RIAA before a jury is Jammie Thomas-Rasset. A Minnesota jury dinged her $1.92 million for 24 songs this summer after jurors concluded she lied on the stand, testifying that perhaps others, including her children, were the actual copyright scofflaws.

Copyright reform advocates are perennially frustrated that their perfectly reasonable ideas of what qualifies as “fair use” online don’t get a chance to be heard in court. That’s no coincidence — the RIAA isn’t going to take a case to trial if it might produce a pro-consumer ruling. But the armchair barristers blaming Nesson for failing to carry their reform message to the Tenenbaum court are misguided.

Regardless of whether the Copyright Act is flawed, or Nesson was out to lunch, the simple fact is the RIAA had Tenenbaum dead to rights."

http://www.wired.com/threatlevel/2009/12/nesson-2/#more-11854