Thursday, April 2, 2009

MediaPost: Radiohead manager may testify for Tenenbaum

As part of his defense of accused peer-to-peer infringer Joel Tenenbaum, Harvard Law Professor Charles Nesson intends to call as a witness Brian Message, manager of the British band Radiohead. Message, who has advocated non-traditional music business models, would testify "that file-sharing can help the music industry," reports MediaPost:

"He is leading a wonderful group of U.K. artists who are coming out in favor of the idea of non-commercial sharing among music fans," Nesson said of Message.

"It's clear that one of the issues that's at play in the case is this idea that there's been tremendous damage done to the music business," Nesson added. "While there may have been some damage done to the CD business, the music business is going to be saved by readjusting and developing these exciting new business models that are consistent with a digital environment."

If this case actually makes it to trial (still a big if, I believe), I predict huge fights over the the admissibility of the evidence and arguments Nesson intends to introduce. Nesson clearly wants to have the focus not on Tenenbaum's conduct, but on "a public discussion on copyright of the sort that we haven't had in the US since the major reworking of the Copyright Act in 1976." Well, that's perfectly appropriate for a classroom, but I'm sure the labels will do what they can to keep it out of the courtroom -- and they have the law on their side.

Tenenbaum has every right to attempt to rebut the damages evidence introduced by the plaintiffs with competent evidence of his own. But his team doesn't have the right to present a case that copyright law should be changed, or that the record labels should adopt different different business models, or that "suing their customers" is a bad idea. They don't have the right to have law professors explain to the jury what the law is or how the law should apply to the facts of this case. See, e.g., Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92 (1st Cir. 1997) ("It is black-letter law that it is not for witnesses to instruct the jury as to applicable principles of law, but for the judge." (citation omitted)); Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207 (D.C. Cir. 1997) ("Each courtroom comes equipped with a 'legal expert,' called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards."). I have serious doubts whether the jury will be allowed to consider Nesson's fair use arguments (fair use is virtually always a question for the judge, not the jury). (Not to mention that courts that have addressed fair use arguments in the p2p context have consistently rejected that defense. See Sony BMG v. Gonzalez, Napster, Aimster.) And if Nesson argues for jury nullification -- as urged by his intended expert Prof. Lawrence Lessig -- the court will -- and certainly should -- shut him down.

The trial is currently set for June. I suspect that Tenenbaum's team will be spending much of their summer vacations responding to a boatload of motions in limine.


  1. Why do you think nullification arguments should be shut down? In all contexts or just this one?

  2. Obviously I have missed model jury instructions pertinent to nullification. That Mr. Lessig even mentions it is disconcerting.

    Personally, I am amazed and confused at the tack being employed by Mr. Tenenbaum's counsel. Seriously, Wiki-briefs, published emails, etc., etc., etc. If Mr. Nesson wants to establish a national debate, doing so as an integral part of defending Mr. Tenenbaum is manifestly the wrong venue.

    Clearly, Mr. Tenenbaum's cause is being undercut by all this silliness. Perhaps now is a good time for him to secure the services of counsel steeped in the vagaries of copyright law and well-equipped to present a sound defense that may hold the promise of being favorably received by the court.

  3. ".....that may hold the promise of being favorably received by the court."

    Nah. People who cannot actually do, often teach, and much depends on the fact that the evidence indicates Tenenbaum actually did do this infringement. Nesson is soap-boxing his own ego in lieu of truly defending Tenenbaum. It'll be a pleasure to watch Gertner have little choice but to throw the book at him.


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