Tuesday, February 3, 2009

Tenenbaum legal team: good on Twitter; lacking in legal tactics

Ars Technica has an interesting article about the Harvard Law students helping to defend accused p2p infringer Joel Tenenbaum. The article includes a lengthy discussion of the team's PR efforts, led by student Debbie Rosenbaum -- who previously worked as communications consultant -- and concludes that "she's doing a shockingly effective job." Whether that's true is hard to judge. I'm admittedly not the best person to ask, but I doubt the team's Twitter feed or even its spiffy web site (which is actually lacking many crucial litigation documents, despite its claim to be a "repository of all of the court filings associated with the...case" (my emphasis)) will really convince many who aren't already true believers.

But I think the focus on the PR campaign -- rather than about how the team, and its leader, Prof. Charles Nesson, are actually litigating the case -- is telling. Rosenbaum is quoted making an obligatory nod to substance:
Public relations won't make the legal arguments any sharper, and Rosenbaum knows that the group can't afford to get caught up in a media circus and neglect the case at hand. "Defending Joel in court is paramount," she says. "We never lose sight of that."
But I'm afraid that the facts don't bear out Rosenbaum's claim. Put aside for a moment the merits of the team's counterclaims, which the article briefly mentions. (For the record, I think that the arguments about excessive statutory damages are wrong under current law, and the claim that "these are essentially criminal cases and Congress has unconstitutionally delegated prosecutorial power to a 'private police force' (the music business)" is patently frivolous.) Rather, let's focus on how Nesson and his team have actually litigated the case. In the 4 1/2 months since Nesson took over, the following has occurred:

1) The plaintiffs took Tenenbaum's deposition, during which Nesson made completely meritless privilege objections and Tenenbaum himself put in such a poor performance that even one of his defenders called it "painful."

2) Nesson noticed the deposition of recording industry litigation attorney Matt Oppenheim, setting the location as a law school auditorium -- a sleazy stunt that no real litigator would pull. And he appears to have completely flubbed the deposition notice procedures, setting himself up as a legitimate target for a sanctions motion.

3) Tenenbaum's team filed an appellate brief on the webcast issue that is, to be blunt, worthless. It contains only about a page and a half of actual argument, and it doesn't cite a single case. I don't know if Harvard gives grades for moot court; I do know that if they do, and students turned in a brief like the one they wrote for the First Circuit, they would fail. That they actually filed it in the First Circuit is shocking; I suspect that the judges will not be amused.

Law professors and their students can be great litigators; if they're great enough, Hollywood can even come calling. But a cool Twitter feed and a nice web site can't compensate for lousy litigation tactics of the type Tenenbaum's team has displayed.

CLARIFICATION: an earlier version of this post said that the Ars Techica article "focuses on the team's PR efforts." While the article does include extensive discussion of this topic, my characterization was based on my following a link only to page 3 of the article; I didn't realize there was a page 1 and 2 that focused on other aspects of the case. I've fixed this in the text and the link to the article. My apologies to Ars.


  1. I think they are doing a good job both raising awareness of the case and working with the resources they have. Remember, this is a pro bono matter.

    As for the 2-page appellate brief, Joel adopts the arguments in the amici briefs of the EFF, the AP, New York Times and others. I suspect there are plenty of cases in those. It's refreshing not to overkill the case citations (or the trees).

    I think what Prof. Nesson is doing is very smart. He's teaching his students that law is a creature of the people, and should be within the reach of the ordinary person. Criticize it as you might, at least their strategy is open to judgment in the court of public opinion. I am sure that Prof. Nesson would defend your right to criticize it on your blog.

    Not all litigators take that tactic, you know.

  2. This is an actual case in federal court, with real parties with real interests on both sides. It is not simply an academic exercise, or a way to "raise awareness" of an issue the students care about.

    Prof. Nesson and the students had every right to take this case. But once they agreed to represent Tenenbaum, they also took on the obligation to abide by the same rules of civil procedure as all other attorneys. For the reasons I've stated, I don't think they've lived up to that obligation.

    As for the appellate brief, I think it's just plain bizarre, and I suspect some judges on the Court of Appeals will not look kindly on their "outsourcing" the real work to amici. The students are certainly capable of doing better, and I'm sure they actually *do* much better when they turn in briefs for their own moot court assignments or other classes.

  3. We'll see. You may be right on some of the procedural gaffes, but they won on the motion for internet in the courtroom in District Court.

    I still think that's pretty good for a bunch of students.

  4. my students and i are at work on a response to the riaa's request for sanctions against me. perhaps we could share the draft with you and get your assessment and suggestions for improvement. we won't be filing it until the first circuit matter resolves, or unless sooner requested by the trial judge.

  5. If you'd like, you are free to send me a draft, and I will comment on it -- publicly, as a blogger. But to be clear: I will not provide legal advice to Mr. Tenenbaum or form an attorney-client relationship with him.

  6. understood, you are not counsel to joel, you are assuming no attorney-client relationship, your comments are in your capacity as a blogger. I hope you will help my students improve the document.



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