from howard knopf
to Cyberprof
My take on Tenenbaum:
[check this out, you won’t be disappointed]
What are the “teachable moments” here?
___
Charles Nesson
to hknopf, cyberprof
howard, thank you for your critique, and for asking your question about teachable moments. the case continues to be a tremendous learning experience.
what issues do you imagine that i might have won with what you would consider good defense?
[this seems to me a telling question :<) ]
and others, please do not hold back on my account
Dear Charlie:
Here’s my response.
http://excesscopyright.blogspot.com/2009/08/my-response-to-prof-charles-nesson-re.html
Best,
Howard
Well, I’m mostly interested in what sort of appeal you’ll launch. You’re in it, regardless of what anyone else may think of it. Didn’t Gertner issue the decision to allow the jury to decide liability just before the last day of testimony — Joel himself? And then rendered a ruling based on Joel’s response to the RIAA lawyer’s question of whether he was admitting liability, just before your closing argument? Beckerman has noted that the question was improper because it addresses a legal question Joel could not be regarded as competent to address, rather than a question of fact. Can an appeal be made either on the basis that Gertner’s ruling of liability was wrong on that basis, or on the basis that the timing of these two rulings interfered with your ability to press the case in a consistent way (or however that kind of issue might be stated in legal terms, if it can be)? You were initially led to believe that the form of the case would be such that you’d be able to make an appeal direclty to the jury on the question of liability for infringement on the fair use basis, but then (and might this point be buttressed by pointing out the problem with the liability question that was put to Joel?) after your were done presenting your case with the expectation that it would take a form similar to a criminal case, you then had that opportunity removed by Gertner’s ruling that Joel was liable? Also, might the case be made that Gertner’s rendering a ruling on liability was invalid itself, for a similar reason of its effect on the integrity of the proceedings, over and above the inappropriate nature of the question?
Nesson almost had the opportunity to press the case they way they wanted to, and that expectation was in place when Joel was on the stand — only to have that expectation removed by an inappropriate ruling by Gertner just before summation.