Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Motion Hearing held on 6/5/2009 re:  MOTION to Dismiss filed by Joel Tenenbaum,  MOTION to digitally audio record the public hearing before the Court on June 5, 2009, and all further public proceedings filed by Joel Tenenbaum,  MOTION to Amend  Amended Answer to Complaint, Counterclaim,  MOTION to Amend  Amended Answer to Complaint, Counterclaim filed by Joel Tenenbaum, and all pending mtns relating to J.Tenenbaum.....all matters taken under advisement, court adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Nesson, Pariser, Cloherty, Reynolds, Bennett) (Molloy, Maryellen)Team Tenenbaum was not optimistic about the results: "[I]t was rough."
UPDATE: Joel Tenenbaum has weighed in with his own report on the hearing, and a prediction:
Fern, Debbie, and Isaac have the same prediction as me: Fair use answer will be allowed in some form, counterclaim and related stuff will be turned down.From what I hear from inside the courtroom, I think Tenenbaum's prediction may turn out to be right. Keep in mind that at this stage, Tenenbaum is merely asking that he be permitted to amend his answer to add a fair use defense, which would result in both sides being able to take discovery on the subject. Even if the court permits the fair use defense to proceed, the plaintiffs could still file a motion for summary judgment on the defense, which is how fair use is often resolved.
UPDATE II: Debbie Rosenbaum of Team Tenenbaum offers her own impression of the hearing:
I don’t know how Judge Gertner will rule on the outstanding motions, but here is one major lesson I will take away from yesterda: One of the frustrating notions is that I get the feeling she agrees with us in principle and policy, but won’t rule in our favor for many of the motions based on law. That’s a really hard concept to grasp: what’s fair isn’t what is necessarily law. And for me, that’s what was “rough.”
… but it is also the nature of our adversary legal system.
Ruling based on...the law? Heaven forfend!