Harvard Law School professor Terry Fisher:
I fear that failure to address the holdings (or dicta) of those [fair use] decisions will give rise to a directed verdict or summary judgment against you — and you will never get a chance to make your case to the jury.And Harvard law student and Joel Tenenbaum defense team member Ray Bilderbeck:
[T]he very novel [fair use] argument that we intend to raise at trial - an argument which has no real basis in case law or moderate academic scholarship - is a blunder that could have very serious consequences.Both quotations are from the infamous March 29, 2009 email chain in which Tenenbaum's potential experts warned his counsel Charles Nesson that the fair use defense was a loser. Of course, Judge Nancy Gertner did grant summary judgment for the plaintiffs on Tenenbaum's fair use defense, and then directed a verdict in plaintiffs' favor on liability. The jury returned a verdict of $675,000. That, we can all agree, is a "very serious consequence."