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Charles Nesson: worst lawyer ever?

Posted by Christopher Shea  August 4, 2009 02:45 PM

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Charles Nesson's client, Joel Tenenbaum

That's the uncharitable assessment of a blogger at Blue Mass Group ("Reality-Based Commentary on Politics and Policy In Massachusetts and Around the Nation"), following the $675,000 penalty levied against Nesson's client, the Boston University graduate student Joel Tenenbaum, by a federal judge, for music-file sharing.

Blue Mass Group points out, as the Globe did, that such cases typically settle for a few thousand dollars. Now Tenenbaum faces the possibility of bankruptcy, unless Nesson can persuade the court to reduce the damages.

In remarks after the verdict came down, Nesson, a renowned teacher at Harvard Law School who made his students virtual co-litigators with him on the case, complained that U.S. District Judge Nancy Gertner didn't permit him to make the argument that the doctrine of "fair use" sanctioned file-sharing. Fair use is more typically invoked in cases involving parody, scholarly citation, or remixing.

But it's not as if Nesson didn't have fair warning on this score. Even the staunchest opponents of the current copyright regime had told him that fair use couldn't be stretched that far. Larry Lessig, perhaps the nation's pre-eminent intellectual-property lawyer, told Nesson it would be "a big mistake" to call him as an expert witness if Nesson planned to make that argument.

How do we know this? Because Nesson blogged about it. Joel Tenenbaum may now be wishing he'd spent more time reading Nesson's blog. He might have had a better idea of just how far out there his his superstar lawyer's game plan was, from the start.

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