Tuesday, March 17, 2009

Prof. Nesson files 'notice of apology' in SONY BMG Music v. Tenenbaum

In SONY BMG Music v. Tenenbaum, Prof. Nesson has filed a 'notice' containing an apology.

'Notice' of 'apology'

[Ed. note: To you law students and young lawyers out there; please don't think you can learn anything from this case. Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible. Please don't ask me where in the federal rules there is a provision for a notice of apology. Last time I looked, there isn't any such provision. Please do not practice law 'from the seat of your pants' the way the lawyers for both sides are doing in this case; that is a sure path to failure.

I'm tempted to stop coverage of this madness, except for its entertainment value. I personally find it more upsetting than entertaining, though, due to the harm this could be causing to other defendants all across the country. In any event, in the interest of 'reporting the news', however sickening it may be to me personally, I will continue.

I can only hope that more good than bad comes out of this nonsense, but I am not in the least sanguine about it. We have a judge who has done a lot of harm to the Massachusetts victims of the RIAA litigation onslaught, and who is of the view that the substantive law overwhelmingly favors the RIAA, despite the ex parte star chamber processes, insufficient pleadings, faked legal theories, hearsay evidence, illegally procured evidence, and most of all insufficient evidence, upon which she has granted ex parte orders, granted judgments, and helped to force unconscionable settlements. She has signed hundreds and hundreds of orders and judgments and other rulings in favor of the RIAA; it took her 4 1/2 years to make even a single, slight ruling, in favor of a defendant. To go into that forum, without adequate preparation, is disaster, not only for the defendant but for all the other people having to defend RIAA cases all across the country, because any ruling adverse to Tenenbaum will be cited by the RIAA ad nauseum.

Meanwhile, as the substance of the apology, I do not even know what Prof. Nesson is talking about. Mr. Oppenheim has frequently presented himself as "the client", the "client representative", and as a "principal" of the client. There was nothing out of line about seeking his deposition as one of the corporate representatives. What was out of line was Prof. Nesson's failure to include all of the evidence of Mr. Oppenheim's having made such representations to the courts in other cases, to the effect that he was not the lawyer, he was a principal of the client record companies. I.e. Prof. Nesson should be apologizing to his client, and to all the other defendants whose cases he might be hurting. -R.B.]


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11 comments:

Eric said...

That pro-se case you covered a few weeks back seems to be better lawyering than this case. How is that plaintiff doing these days? Has the RIAA given them both barrels or are they dropping the case?

Ray Beckerman said...

Haven't heard anything yet on the pro se case. Feel sorry for the defendant having to resist RIAA motion practice without a lawyer.

Wish that defendant had legal representation.

Anonymous said...

Charlie's Notice link isn't working.

Ray Beckerman said...

Yes it is. Must have been a temporary glitch.

David Donahue said...
This comment has been removed by the author.
Anonymous said...

Could the Tennebaum team be deliberately setting things up for an anticipated appeal? Tempt the RIAA and the judge into a poorly argued dismissal of their case, so transparently bad that the appeal court will be unable to accept it.

Anonymous said...

ray, i appreciate your criticism but ask you to note that my motion to compel, which you agree was not frivolous, was a specific request for deposition on the day vacated on judge gertner's calendar by the granting of the stay to accommodate the first circuit. i'm not apologizing for filing it, but rather for not withdrawing it when the january 22 date had passed without resolution of it.

are you thinking there is something damaging to apologizing? as to the propriety of using pacer's "notice" category i am following the plaintiffs' lead.

Ray Beckerman said...

The use of this 'notice' procedure for things which are not provided for in the federal rules, local rules, or judges' rules, does not seem like an appropriate procedure. Yes you were following the lead of Timothy Reynolds who is incompetent.

Ray Beckerman said...

In any event what matters now is the future. What concerns me most for this case is that the leading cases and law review articles saying that statutory damages are or may be subject to State Farm/Gore test be presented to Judge Gertner, since they were not included in the main brief. I am the first lawyer I know to have raised the issue in the RIAA cases, and I did so only because the US Court of Appeals for the 2d Circuit had come to this conclusion. I can't imagine not informing Judge Gertner of that 2d Cir. ruling, of the 3 dist. ct. cases that followed it, and the 2 law review articles that the copyright act statutory damages as applied to infringement of a single mp3 are indeed unconstitutional.

Friend of this Blog said...

Professor, you asked Ray if there is something damaging about apologizing [proactively]. The answer should have been "yes, never back down, never show weakness, never admit error - wait until the judge threatens sanctions or opposing counsel makes a stink of your crime of not withdrawing a motion in time."

A real lawyer would never have filed a wimpy notice of apology as a pleading.

Anonymous said...

The EFF and/or Ray should be brought into this case. Harvard is clearly having problems. There's just too much at stake here - not only for Joel, but for all other current and potential defendants. Not to mention Harvard's own good name.