The only thing that makes sense to me (caveats: I am not an attorney, and usually very little makes sense to me) is that Team Tenenbaum doesn't care about this verdict, and it's plotting to win the appeal on larger Constitutional grounds -- though probably not fair use -- in order to establish precedent. In other words, they wanted to lose. Because if they had won, the record companies would have to appeal to move the case forward. And the RIAA has indicated it's finally done suing the world to make up for its own naked greed and stupidity. (I'm editorializing just a bit here.)
The other option: Nesson is trying to make a point about damages. Right now, Tenenbaum et al stand to lose as much as $4.5 million, due to the largesse of the U.S. Congress, which created laws with penalties of up to $150,000 for each infringement.
As anyone who's not connected to the record companies will tell you, that's friggin' nuts. There is no way an individual costs the record companies $150,000 by uploading or downloading a song. And if that amount is purely meant as a disincentive, it clearly isn't working, as the record companies themselves will tell you. File swapping is still the hot craze on campus; all the kids are doing it.
But relying on a jury to make that decision is beyond risky. Look what happened to Jammie Thomas-Rasset. Found liable once for around $9,000 per song, she appealed, was declared guilty again, and is now on the hook for $80,000 a song. She's got "Bills, Bills, Bills" and no way to pay them.
The jury selection selection process in the Tenenbaum case was "tortured" by even the judge's standards. The record companies did their job, weeding out jurors who might be sympathetic to file-swapping college students and/or know much about tech. Nesson, by contrast, wanted to know if jurors would be offended by the black turtleneck he wore in the courtroom (apparently he's a big Steve Jobs fan) or his admission to smoking marijuana in the past. No, I'm not making that up. (Though I suspect that "by the past," he meant "in the past five minutes, in the bathroom down the hall.")
Writing all this, I'm starting to wonder if Nesson is actually licensed to practice law or just a wacky impersonator, like Leonardo DiCaprio in "Catch Me If You Can." It's certainly entertaining from the perspective of someone who isn't on the hook for $4.5 million, but I have to wonder how Team Tenenbaum feels about all this.