Tuesday, April 7, 2009

Nesson on Tenenbaum: 'I represent him. I am him. We are one.'

Very entertaining collection of Nessonalia in Jonathan Saltzman's Boston Globe profile of Joel Tenenbaum's counsel, including the nugget that Nesson's taping of his wife's infamous "schmuck" screed was done without her knowledge:
Nesson, she said, constantly carries a tiny digital tape recorder around their Cambridge house and must have turned it on when she wasn't looking. "He is literally a person who believes in openness," said Fern Nesson, who apparently holds no grudge and has apologized to the student. "He feels his life is an artwork."
And, given an opportunity to clear up the lingering fuzziness over whether he had his client's permission to reveal confidential internal deliberations -- as required by the Massachusetts Rules of Professional Conduct -- Nesson instead got a bit metaphysical:
"Did he give permission?" he said. "I represent him. I am him. We are one."
"I am him. We are one"??? So...if the jury returns a verdict for the plaintiffs, is Nesson on the hook for the damages?


  1. I think if the jury awards damages to Plaintiffs that Tenenbaum has a reasonably tenable case against counsel. Even though it appears he's given permission post hoc, there's a limit to what a client can waive. But the bar for malpractice is pretty high -- and Tenenbaum's being represented by a law professor and a bunch of students. They wouldn't be expected to necessarily know these things (or so the law says).

  2. The theme of the Boston Globe article is Professor Nesson truly believes in openness and complete openness will allow the world to understand the plight of copythiefs such as Joel. However, it does not appear to this follower that Nesson is being truly open -instead he is playing games and engaging in publicity stunts to increase his own notoriety and to distract from the bad facts at hand.

    The first, and probably most important, of these is whether Joel downloaded the songs in question. In some letters and articles, Prof. Nesson says that Joel copied songs for his personal use and he shouldn’t be punished for that. In others, he claims innocence. Which is it? If he admitted downloading the songs, wouldn't the case be over?

    Similarly, it is unclear how many songs we are talking about. www.joelfightsback.com claims the RIAA wants one million dollars for seven songs. Is that true? I thought the RIAA only went after massive infringers.

    Next, Professor Nesson's claim in the Globe article that Joel has no need for secrecy or attorney-client privilege seems completely at odds with Joel's deposition. I couldn't find the link, but I recall a student describing a series of questions to which Nesson instructed him to not answer and Joel asserted attorney client privilege. The RIAA lawyer suggested Nesson was not familiar with the rules pertaining to depositions, as this was improper. Nonetheless, Professor Nesson and Joel held their ground and refused to answer.

    I'm sure there are lots more examples of Professor Nesson and Joel only playing this game of openness when it is convenient for them. Ben, I'm sure you could find them! That's not to suggest that the role of the lawyer or client is to be open and report everything to the public (or to their adversary). To the contrary, ethical considerations prevent that. But when the self-described leading internet lawyer claims he is showing us everything, I think we are all well served by a healthy does of skepticism and by remembering that Nesson is now wearing his attorney hat (or his poker hat) and is likely playing us all.

  3. 1) This case is NOT just about 7 songs. The complaint makes clear that it is ALSO about the more than 800 songs in his shared folder.

    See complaint (par. 11): http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf

    And this brief (pages 10-11): http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090323PltffsOpposBrief.pdf

    Also, it is NOT true that "the RIAA wants one million dollars for seven songs." The record label plaintiffs (the RIAA is not a plaintiff) have NOT asked for a specific amount of damages. They didn't do so in the Jammie Thomas case either; the jury chose the amount ($9,250 per work) on its own. And in this case, according to Tenenbaum himself, the plaintiffs have offered to settle for far less than that.

    2) Good point about Nesson himself making privilege objections when it served his interests. Listen to "Part 1" here: http://blogs.law.harvard.edu/cyberone/2008/09/25/thoughts-on-joel-tenenbaums-deposition/


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