I have on more than one occasion expressed my harsh views regarding Nesson’s lawyering in the case (here and here). But the Harvard Law Record’s story only adds fuel to my fury at Nesson’s lawyering skills. According to the story, “When the case first came to his attention, Nesson knew that there was little chance of victory on the merits, with the only truly viable strategy at trial being the minimization of damages.” (emphasis added)

The RIAA cannot have been happy about the way it looks after winning a judgment of $675,000 from a kid, especially since, as Nesson with some degree of accuracy explains, “[w]hat Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.” The RIAA was anxious to settle a similar case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Mike Masnick wrote, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

And Tennenbaum quite plainly had the ability to minimize damages through settlement rather than by means of Nesson’s tactic of going to trial. In February, Ars Technica reported that the “RIAA’s initial offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the case went to court in 2007, the judge ordered the parties to settle and work it out between themselves. Joel offered $5,000. The RIAA demanded $10,500.”

And yet Nesson, realizing that “there was little chance of victory on the merits” and that the only viable way of representing his client’s best interests was to minimize the amount of his liability, failed to settle a case that at most would have cost his client $10,500 (assuming, contrary to any notion of common negotiating sense, that the RIAA would not have moved off of its last offer).

The Harvard Law Record’s story goes on to state that “the evidence presented by the RIAA . . . made it look like Tenenbaum blamed others and lied,” thereby interfering “with his effort to appear credible and sympathetic.” The problem is that the evidence didn’t merely make it “look like” Tenenbaum lied. He admitted in trial that had lied in sworn statements he had made before trial that he had not used peer-to-peer file sharing networks to download and upload recordings.

I’ve said it again and again. I’m no fan of the RIAA. The recording industry’s business and legal responses to the technological revolution that has deprived them of their former monopoly on the means of mass producing and distributing recorded music have been, to my legal and business mind, idiotic. But Nesson was Tenenbaum’s lawyer. His professional judgment as a lawyer was that any legal defense to the RIAA’s claims had little chance of success and that the best lawyering job he could do for his Tenenbaum was to minimize the damages he would be liable for. Nesson clearly had the opportunity to do so. That he passed up that opportunity in a quixotic fight for a principle might be something a lot of people admire, but it’s terrible lawyering.

Masnick writes too that he’s been expecting Jammie Thomas to settle “but the longer this goes on, the more I wonder if she’s actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations.”

Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this appeal. When a lawyer looks to challenge a law, if he’s got any sense he doesn’t challenge it via any case that happens to come up. He chooses a case that presents especially good facts for the challenge. The EFF would love to have Jammie Thomas appeal – no case involving a defendant found liable for illegal downloading would be a better vehicle for bringing the challenge to the statutory penalties.

Nesson seems likely to argue that there is no remedy for non-commercial music downloading in the absence of proof of actual economic harm. If that is the basis of his argument for fair use, at least it makes some sense (even if it seems unlikely to prevail). 

More effective, perhaps, will be Nesson’s efforts to convince the court that a jury should decide his client’s fate. As he explains:

 Fair use is recognized as a common law, perhaps a constitutional concept, not defined by but merely recognized and continued by the statute (Sony, Harper); that the statutory four factors are illustrative and not exhaustive; that analysis must be case by case; and the question is a jury issue. 

But I’m not sure he’s entirely right about that. Both an influential treatise (4-13 Nimmer on Copyright Section 13.05, n. 17) and the courts suggest that whether certain acts constitute fair use is a “mixed question of law and fact.” A question of law is one a judge determines; a question of fact is one a jury determines. A mixed question of law and fact is one in which a jury determines what happened, and the judge determines the legal effect of those facts. See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986)  I’m not sure how Nesson is going to persuade jurors who might be sympathetic to his client to find the historical facts he needs to convince the court his client’s music downloading was fair use.