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The Almighty Buck The Courts Your Rights Online

Charles Nesson Ruled Jointly Liable To Pay RIAA 207

Posted by timothy
from the that-limb-looks-awfully-thin-professor dept.
eldavojohn writes "The highly anticipated Joel Tenenbaum trial ended in a disaster for Tenenbaum. But worse for his highly publicized lawyer, Charles Nesson, they are both liable for payment of the court's decision to the RIAA. Nesson's pro bono agreement with Tenenbaum may turn out to be a seriously expensive experiment for the Harvard Law Professor." As the Ars story points out, though, it's "some fees incurred by the RIAA during the trial" for which he'd be liable, not the whole judgment amount.
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Charles Nesson Ruled Jointly Liable To Pay RIAA

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  • by MarkvW (1037596) on Thursday March 04, 2010 @06:21PM (#31364528)

    Nesson's conduct isn't justifiable. But that's not really my point.

    I can't see how his behavior helps Mr. Tennenbaum. The lawyer is supposed to help his client, not grab attention for himself with patently improper tactics. Nesson looks like he's putting his own interests ahead of his client's interests.

    Nesson hasn't demonstrated any technical legal tactics in this case. Nor has he provided any insightful new ways to approach the copyright law.

    He's just dancing around on the stage like a really old Ziggy Stardust.

    He'd garner more respect if he spent more time working for Mr. Tenenbaum.

  • Nesson did what? (Score:5, Insightful)

    by grapeape (137008) <mpope7 AT kc DOT rr DOT com> on Thursday March 04, 2010 @06:21PM (#31364532) Homepage

    Wow! wonderful strategy there. According to the article Neeson not only repeated the same offense that Tenenbaum was accused of but then linked to it on his blog. Then after the RIAA files a motion to compel, Nesson doesnt even file a response? What in the heck was he trying to do here, did he just suddenly loose his sanity? I realize the guy was working pro-bono but in this case it seems worse than representing yourself.

  • Re:Good and bad. (Score:5, Insightful)

    by sheetsda (230887) <doug.sheets@gm a i l . com> on Thursday March 04, 2010 @06:21PM (#31364538)

    Don't want to get electrocuted, don't represent a murder.

    And how does the one who is falsely accused of murder secure council in your hypothetical reality?

  • Re:Good and bad. (Score:5, Insightful)

    by Ogive17 (691899) on Thursday March 04, 2010 @06:24PM (#31364588)
    Uh, everyone is entitled to defense. Even if the person is guilty of the crime, maybe the circumstances dictate it was an accident with no intent. Sometimes that's still a criminal offense but the punishment would be less severe.
  • Re:Good and bad. (Score:1, Insightful)

    by GMThomas (1115405) on Thursday March 04, 2010 @06:25PM (#31364590) Homepage
    That would be a good idea if the legal system was infallible. How could you possible get a defense lawyer on your side if you had hard evidence lined up against you?
  • Re:Good and bad. (Score:1, Insightful)

    by BlueBlade (123303) <mafortier@@@gmail...com> on Thursday March 04, 2010 @06:26PM (#31364604)

    I can't figure if you're a troll or not, but if you are serious, this is one of the most stupid comment I've ever read on slashdot. The consequences of such a system are immediatly obvious: nobody would ever want to risk their own lives to defend anyone accused of a serious crime, even for cases where the accused is almost certainly innocent (why risk it at all?).

  • Re:Good and bad. (Score:1, Insightful)

    by Anonymous Coward on Thursday March 04, 2010 @06:26PM (#31364608)

    Then you would end up with only prosecution/plaintiff lawyers and never any defense lawyers. Not to mention that public defenders don't choose who they are defending, innocent people sometimes get convicted, and sometimes the lawyer doesn't even know if their client is guilty or not. Heck lawyers aren't really supposed to care if their client is guilty or not, because it is their professional duty to represent someone in a place with convoluted and illogical rules.

  • Re:Good and bad. (Score:5, Insightful)

    by Grishnakh (216268) on Thursday March 04, 2010 @06:31PM (#31364670)

    This is a ridiculously bad idea.

    First, not all lawyers know their clients are guilty. They only know what their clients tell them, which may or may not be true.

    Second, according to law, everyone is entitled to legal counsel and representation in a trial. That's why we have public defenders. Are you proposing that public defenders be given the same sentences as their clients, even though public defenders don't actually have a choice in who they represent?

    The whole court system in Common Law countries is based on the idea of the adversarial system. It's just like debating, where one debater (or team) may be assigned to argue for something they completely disagree with personally.

    Of course, this does bring up the question of whether the adversarial system is really the best one or not. Back to my comment with debating, the practice of debating shows that a talented person skilled at debating could convince a group of people to accept something totally wrong if his opponent is not as skilled as him. For instance, in a debate about slavery, a talented debater could conceivably convince a group of laymen that slavery is actually a good idea and should be brought back, if his opponent is not very skilled. This is similar to courtroom trials: the truth of the case is secondary to the skills of the lawyers, so guilt or innocence is highly dependent on how good (and thus expensive) your lawyer is. People who can't afford lawyers and get public defenders thus are much less likely to prevail, even if they're innocent. The fact that juries are typically composed of the dumbest people from any particular population doesn't help; they're even more easily swayed by good-sounding arguments because they lack the critical thinking skills that better educated people have.

    This is why I think the French/German Civil Code is a better way to design justice systems. In those, the Judges are not former lawyers, they actually go to school to become judges, and their role is not merely to oversee a debate between two lawyers, but they're inquisitors: their role is to seek the truth. Most of these countries have also eliminated juries as they're simply not useful in determining guilt.

  • by calmofthestorm (1344385) on Thursday March 04, 2010 @06:32PM (#31364694)

    Mr Tenenbaum got what he paid for. You take a prominent lawyer/law person as a pro bono lawyer they come with an agenda. This can be good for you if their agenda is similar, but you do need to take it into account.

  • Re:Good and bad. (Score:5, Insightful)

    by nomadic (141991) <[nomadicworld] [at] [gmail.com]> on Thursday March 04, 2010 @06:35PM (#31364734) Homepage
    First, not all lawyers know their clients are guilty. They only know what their clients tell them, which may or may not be true.

    Also a lot of lawyers legitimately believe even if their clients committed a crime, they did not commit what they're being charged with.
  • Re:Good and bad. (Score:5, Insightful)

    by Zarel (900479) on Thursday March 04, 2010 @06:43PM (#31364832)

    His exact words were this:

    I've long felt that lawyers should be subject to the same outcome as their client. Don't want to get electrocuted, don't represent a murder. Don't want to end up a million dollars in the hole? Don't represent a doctor who's clearly guilty of malpractice.

    I've heard lots of ideas for improving the legal system... some of them have been really good, and some of them have been really bad. Of all those, this is the worst idea I've ever.

    Even if all it does is prevent a lawyer from simply defending people who are "clearly" guilty (which it doesn't - and which in and of itself is a ridiculous idea - it is impossible by the laws of physics for there to be no doubt whatsoever that someone is guilty), it would still be an extremely bad idea.

    The purpose of a lawyer varies depending on legal jurisdiction, but in general, a defense lawyer exists to ensure that someone who is accused of a crime doesn't get screwed over. A lawyer is there to help innocent people convince courts of their innocence, and to make sure a guilty person doesn't get a worse punishment than they deserve. Your proposal undermines both of these.

    (This is why the US Constitution guarantees a lawyer wherever necessary, and why public defenders will be provided to people who can't afford their own lawyers.)

    Consider the case of someone who is obviously innocent, but accused of a murder. Why should we force someone to risk their life to represent him?

    Or even in a hypothetical dreamworld where the legal system is never wrong and no one innocent ever gets convicted: Consider someone who is obviously guilty of a lesser crime, let's say shoplifting, but has been accused of murder. Why should a lawyer have to take jailtime to help make sure that person doesn't get executed?

  • by Infonaut (96956) <infonaut@gmail.com> on Thursday March 04, 2010 @06:44PM (#31364844) Homepage Journal
    ... seek out a practicing attorney, rather than a full-time law professor.
  • Re:Good and bad. (Score:5, Insightful)

    by Anonymous Coward on Thursday March 04, 2010 @06:48PM (#31364894)

    Lawyers should defend all people to their best ability, it's not their job to determine the clients guilt. They are lawyers, not Judge and Jury. I think you are confused as to the nature of our legal system.

  • by Zordak (123132) on Thursday March 04, 2010 @06:53PM (#31364954) Homepage Journal

    Those with the funds make the rules.

    Yeah, unless you read what actually happened, which is that Nesson uploaded the same songs Tennenbaum was accused of uploading and then boasted about it (and linked to it) on his blog. And then when the RIAA served discovery requests asking why he did that, he just responded that it wasn't relevant to the case. Whatever his agenda was, he got no more than he deserved here. I don't care what you think of the RIAA, this was just stupid.

  • Re:Good and bad. (Score:4, Insightful)

    by nedlohs (1335013) on Thursday March 04, 2010 @06:56PM (#31364972)

    Maybe you should try reading the thread.

  • by Corporate Drone (316880) on Thursday March 04, 2010 @06:56PM (#31364974)

    He isn't liable to pay the amount of the court's decision -- just the costs of discovery for one motion to compel.

    Really, given all the grandstanding, and improper behavior, if I were Tenenbaum, I'd look into appealing on the basis that Nesson did not provide a proper defense...

  • Re:Good and bad. (Score:2, Insightful)

    by wisnoskij (1206448) on Thursday March 04, 2010 @07:02PM (#31365046) Homepage

    But the lawyer himself is not infallible.
    The legal system is not based on, "oh he is obviously guilty so he does not require a fair trial".
    The trial itself is the indicator of guilt, not the lawyer.

    One way to take that idea to it logical extension (IMHO) is just to give police the ability to execute/punish anyone they judge obviously guilty, it would save the courts a lot of money.

  • Re:Good and bad. (Score:5, Insightful)

    by Lunix Nutcase (1092239) on Thursday March 04, 2010 @07:08PM (#31365120)

    So the OP wasn't saying that lawyers shouldn't defend people accused of murder, just those that are clearly (known to the lawyer himself) guilty.

    You mean like a number of easily found examples where people thought someone was clearly guilty but those same defendants were later exonerated? Everyone deserves legal defense otherwise we might as well have no legal system at all and just throw anyone accused of a crime straight in jail.

  • Re:Good and bad. (Score:3, Insightful)

    by FSWKU (551325) on Thursday March 04, 2010 @07:15PM (#31365180)

    I've long felt that lawyers should be subject to the same outcome as their client. Don't want to get electrocuted, don't represent a murder. Don't want to end up a million dollars in the hole? Don't represent a doctor who's clearly guilty of malpractice.

    Meaning you want to essentially get rid of due process, is that correct? Stand accused of a crime, but nobody is willing to defend you because they don't want to share the same fate you get handed. That would be the wet dream of the MPAA/RIAA and any criminal/organization with an axe to grind: Commit a crime and make sure there's enough evidence to pin it on someone else. Nobody will argue against it because they don't want to share a cell with the accused.

    As others have said, defense lawyers are there to protect their clients RIGHTS, not their crimes. Without them, there would be nobody to refute biased evidence or testimony, no one to object to the prosecution leading/badgering the witness, and no one to ensure their client gets a fair trial no matter what they're guilty of. That's the spirit of why we conduct legal proceedings the way we do. If you say a person is guilty of a crime, you have to PROVE they did it. Otherwise we go back to the days of those in power screwing over the little guy on their say-so alone (more than they already do). Why bother with evidence if the accusing party is seen as infallible?

    It doesn't matter what you're accused of, or even if you're guilty beyond the shadow of a doubt before ever going to trial. If you wish to fight the charges, you have the RIGHT to have your side of the story heard in court. There was a great quote on NCIS the other night, where a defense attorney was asked why she keeps representing criminals. Her reply was something along the lines of, "You make your case, I make mine, and as long as either side wins, I've done my job."

  • Re:Good and bad. (Score:3, Insightful)

    by QuoteMstr (55051) <dan.colascione@gmail.com> on Thursday March 04, 2010 @07:19PM (#31365214)

    Guilt is never absolute [infoplease.com].

    As for you, bitZtream: you come into every Slashdot discussion carrying the most ignorant, vitriolic, hateful chip on your shoulder that man has ever conceived. In every conceivable circumstance, you come down in favor of money, power, influence, and the elite instead of social justice and basic fairness. You would rather live in the world of medieval crusades than in the one of Locke and Rousseau.

    You're either an excellent troll or a miserable human being. I'll give you the benefit of the doubt and assume the former.

  • Nesson did a lot of stupid, antagonistic things that were more in line with amateur hour or self-promoting than with representing the true interests of his client:

    The defense team inexplicably posted the very songs at issue in the case to the Internet, and Nesson posted a public link on his blog for anyone to download them.

    This behavior prompted a discovery request from the record labels, which wanted to know more about why the defense was now doing the very thing it had been accused of doing in the lawsuit. Nesson didn't want to tell them. The labels then filed a "motion to compel" the information.The judge sums it all up:

    [Nesson's] terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury.

    The Court's indulgence is at an end. Too often, as described below, the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and e-mails with potential experts (who have rejected the positions counsel asserts) on the Internet, and now allegedly replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that the Defendant is accused of file-sharing.

    Nesson didn't oppose the motion because there were no grounds to oppose it - except maybe the Peyote defense ("Heyheyhey, I waz stoned, Judge") or maybe insanity ("Would a sane person do the things I did - in a COURTROOM?" The facts speak for themselves - I'm nuts, judge").

  • by Lloyd_Bryant (73136) on Thursday March 04, 2010 @07:29PM (#31365298)

    Really, given all the grandstanding, and improper behavior, if I were Tenenbaum, I'd look into appealing on the basis that Nesson did not provide a proper defense..

    IANAL, but "inadequate representation" can only be used to appeal in *criminal* cases. In civil cases, the client can potentially sue the lawyer for malpractice, if he loses a case (and money) because his attorney turned out to be a nutjob.

  • by The_Wilschon (782534) on Thursday March 04, 2010 @07:33PM (#31365336) Homepage

    Regardless of whether or not he deserved this, it is not a correct application of US laws (to the best of my understanding; IANAL). If he has committed a particular act which caused harm, then he should be sued separately. You don't get to just randomly include extra people after the fact as defendants in a lawsuit.

    Yes, what he did was really arrogant and stupid, and he probably deserves even more punishment than Joel Tenenbaum deserves (which is probably not actually very much), but this is not the right way to go about punishing him. Hence the comment that the rich make the rules, which does seem to be applicable here.

  • by westlake (615356) on Thursday March 04, 2010 @07:33PM (#31365338)

    Nesson must have been paid handsomely by the RIAA to throw the case and set a precedent favorable to the RIAA.

    When you are shopping for a trial attorney do you chose:

    A. The State U graduate who has spent a lifetime in the trenches.

    Or

    B. The Harvard Prof who hasn't seen action in fifteen years and arrives with the FSF and a German Om-Pa-Pa band in tow.

  • Re:Good and bad. (Score:5, Insightful)

    by Dhalka226 (559740) on Thursday March 04, 2010 @07:44PM (#31365436)

    So the OP wasn't saying that lawyers shouldn't defend people accused of murder, just those that are clearly (known to the lawyer himself) guilty.

    I disagree. The people who are "known" to be guilty are most in need of a good lawyer. Not because I relish the thought of murderers getting off on technicalities, but because murderers getting off on technicalities is the only way to motivate police officers and prosecutors to do their jobs properly and respect peoples' rights.

    If somebody is "known" to be guilty then the only reason they should get off is police or prosecutorial misconduct, or it obviously wasn't as known as it sounded. If they get off based on that, then they should have. Sometimes guilty men have to go free to serve the greater concept of justice. That's frankly a much more important goal than punishing an individual defender, no matter how dangerous he is.

  • by Thinboy00 (1190815) <thinboy00&gmail,com> on Thursday March 04, 2010 @08:13PM (#31365686) Journal

    ...or maybe he's a fucking moron and/or paid off by the RIAA.

  • Re:Good and bad. (Score:3, Insightful)

    by epine (68316) on Thursday March 04, 2010 @08:41PM (#31365890)

    It is not, as it is not the same "knowing somebody to be guilty" to "knowing somebody to be declared guilty". Presumed means exactly that: pre-assumed. It's perfectly possible to know enough about the facts and about the legal system to know somebody is guilty before the trial outcome because then you are not pre-assuming anything: you know.

    It doesn't make any difference. You're still tap dancing. Guilt by personal knowledge is not a transitive function, so even if the lawyer determines pre-trial guilt in the inner court of his mind, telling anyone else is completely useless. If the lawyer ultimately testifies to such, he's no better than any other witness, and not believed until cross examined.

    I suspect conflict of interest guidelines prevent a lawyer from representing and testifying against his client in the same trial.

    The fact of the matter is that "knowing somebody guilty" is a worthless state of mind unless the person expects to testify. Prior to the trial, you shouldn't be sharing such an opinion with the guy on the next bar stool if you really care about justice.

    The only thing the lawyer can legitimately do with this conclusion is to decide that the prospective client is either too guilty/not guilty enough to take on the case, whichever his preference. This is a private decision, which again does not involve sharing.

    Just try to imagine a world where snap judgement was transitive, without also conjuring genocide or the tyranny of the playground.

  • Re:Good and bad. (Score:3, Insightful)

    by BigJClark (1226554) on Thursday March 04, 2010 @09:22PM (#31366230)

    Presumably, the prosecution would be electrocuted if they failed to convict said one. It's got to be fair, y'know ;)
  • Re:Good and bad. (Score:1, Insightful)

    by Anonymous Coward on Thursday March 04, 2010 @09:25PM (#31366256)

    Or the Duke Lacrosse team.

  • Re:Good and bad. (Score:5, Insightful)

    by wealthychef (584778) on Thursday March 04, 2010 @10:05PM (#31366504)
    Wow, you live in a scary world. No, I don't have a list of people I wish to kill. Perhaps you should get some help with that.
  • Re:Good and bad. (Score:4, Insightful)

    by tignet (1303483) on Thursday March 04, 2010 @10:24PM (#31366654)
    Perhaps you should consider that there is a reason for having 12 people on a jury, and why a single person can hang it. What seems to have appalled you, in practice, worked exactly like it should have. It takes a single person to keep things balanced.

    It's also interesting, that knowing this, you advocate demanding a judge to determine your fate over that of a jury -- essentially, putting all your eggs one one, biased basket. And yes, we're all biased, like it or not. To not be biased would require a special mental handicap that I have yet to encounter.

    I don't consider myself stupid by any means, and, like your mother, I too decided to serve on jury duty. I recommend it for everyone; it's completely different than portrayed on television. Sure, you're supposed to make decisions on the facts -- which is what you believe to be true, not evidence, which is something else. You're constrained by the laws, the wording, definitions, etc. Then the last thing the judge tells you is that what happens in that room is no one's business except yours, and that ultimately you're going to make decisions that you feel are truthful, and you can sleep with.

    The judge who talked to our group discussed a priest with a drinking problem who had gotten off drunk driving convictions three times by various juries. Each time, the jury saw what a great man he was and gave him "one more chance." Eventually he wrapped his car around a tree and died, but the point the judge was making is that you're not necessarily doing someone a favor by letting them off. While he didn't kill anyone else, he could have.

    I took something else away from it too: the jury has the ultimate control over deciding whether a crime was committed. It can be illegal for you to chew gum, but it'll take a full jury to be willing to convict you. For example, in Michigan, it's a felony to commit adultery (750.30). I suppose adultery is about as common here as anywhere else, but guess how many people are tried for it... Juries are the reason draconian laws aren't enforced.

    If our fate lay solely with a judge, who is completely unbiased (if there were such a thing), and who held us accountable to the letter of the law in all cases, we'd be much worse off.
  • by nitehawk214 (222219) on Thursday March 04, 2010 @10:26PM (#31366674)

    The one that takes the case pro-bono.

  • Re:Good and bad. (Score:3, Insightful)

    by Grishnakh (216268) on Thursday March 04, 2010 @11:08PM (#31367056)

    Then there's no incentive for lawyers to bother doing a good job, and everyone will have crappy lawyers to defend them. Meanwhile, DAs will have a field day because they DO have an incentive to do a good job: they get paid a lot more, as they're publicly-elected officials, and their big selling point is how many convictions they can score.

  • Re:Good and bad. (Score:5, Insightful)

    by Jurily (900488) <jurily&gmail,com> on Friday March 05, 2010 @03:52AM (#31368646)

    So the lesson is don't get accused with crime, especially if you're poor cause then they are really going to stick it you.

  • Re:Good and bad. (Score:3, Insightful)

    by Wildclaw (15718) on Friday March 05, 2010 @03:52AM (#31368650)

    Of course, the fact that lawyers are needed at all for anything but basic consultations, indicates a completely broken justice system, a system where no one is interested in truth or fairness, but only in their side winning.

    And yes, that applies not only to the US, but most of the modern world.

  • Re:Good and bad. (Score:2, Insightful)

    by metacell (523607) on Friday March 05, 2010 @07:18AM (#31369606)

    The last barrier to abusive government is being dismantled.

    To me, who live in a country where jury nullifcation has never existed, that statement sounds odd. Shouldn't the last barrier to abusive government be to depose it in public elections?

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