Charlie Nesson & The Emperor’s New Clothes

The much-anticipated trial in the RIAA music-downloading lawsuit against BU student Joel Tenenbaum started Monday in federal court in Boston before Judge Nancy Gertner.  Tenenbaum is represented pro bono by “Billion-Dollar Charlie” Nesson of Harvard Law School, assisted by a team of law students.  From the start Nesson has appeared more interested in the spectacle of doing battle with the RIAA than in counseling his client.   His challenge to the constitutionality of the RIAA’s claims went nowhere, the First Circuit shot down his motion to stream video of the proceedings (an unfortunate ruling), Judge Gertner tossed his proposed fair use defense on the eve of trial (fair use was unsuccessful in the Napster, MyMP3, Grokster, and all other music-sharing cases in which it was raised and there is no reason to believe the court should have allowed it here), and Nesson’s opening statement relied on the theory that “all the kids are downloading music–that’s just what kids do!”  His approach to the case has been inexplicable, if bizarrely entertaining.

Then Joel Tenenbaum took the stand yesterday and admitted infringing the plaintiff’s copyrights by downloading the music files at issue.  To put it more simply, he admitted liability for copyright infringement.  Last night Judge Gertner granted the RIAA’s motion for a directed verdict, a 2xz4 upside the defense team’s head.  The only thing left to try is the amount of the RIAA’s damages.   Maybe Nesson thinks he will convince the jury to award $1 for each incident of infringement.  If he does I will give him kudos for brilliant lawyering.

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