Charles Nesson, lionized local lawyer and co-founder of Harvard’s Berkman Center for Internet and Society, got his clock cleaned on Page One of the New York Times Tuesday.
And the piece – about Nesson’s hapless defense of illegal-music-downloading Boston University student Joel Tenenbaum – wasn’t just an ass-kicker; it was a head-scratcher as well.
Head-scratch #1:
What the heck was Nesson thinking to take this case at all? According to the Times:
Professor Nesson took on Mr. Tenenbaum as a client without pay last year at the encouragement of Judge Nancy Gertner of Federal District Court, who presided over the case and was uncomfortable with what she has called the “huge imbalance” between industry lawyers and the individuals they have sued.
Let’s stipulate that I’m a graduate of the Sam Waterston School of Law . . . but is that kosher? Should a presiding judge be hand-picking the defense attorney?
Head-scratch #2:
Nesson’s noodnik “fair use” defense, which people apparently far sharper than Nesson strongly advised against, the Times reported.
Lawrence Lessig, an internationally recognized expert on copyright at Harvard Law School, expressed serious reservations about the suit and counseled against Professor Nesson’s plan to argue that Mr. Tenenbaum had made “fair use” of the music. Fair use is a doctrine more commonly cited when small portions of a published work are quoted elsewhere. It would be wrong, Professor Lessig wrote, to “pretend” that “fair use excuses what [Tenenbaum] did.”
Face!
Even before opening statements, Professor Lessig was proved right: Judge Gertner prohibited the fair-use defense.
Head-scratch #3:
So Joel Tenenbaum winds up losing his case and owing $675,000 for illegally downloading 30 songs. Turns out he’s an even bigger noodnik than Nesson, as the Times verifies:
The $675,000 result could have been avoided by paying $4,000, the amount the industry demanded before trial. The 30 songs can be bought for less than $30.
Head-scratch #4:
Nesson apparently saw this as a legal Petrie dish independent of Joel Tenenbaum’s actual life. Once again – fair use! – the Times:
“Law in the court of public opinion is what shapes law in the courts and in the real world,” Professor Nesson said. “This could be ‘Civil Action II.’ ”
No, it’s Civil Action Doofus.
Several years ago the Boston Globe ran a Charlie Nesson Keeps ‘Em Guessin’ feature story [no way I’m finding that link at this hour], which memorably included the fun fact that Nesson smoked a joint every morning on his walk to Harvard.
Next time, Charlie, don’t Bogart it.
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