Tenenbaum v RIAA case ’seriously funky’
p2pnet news view Freedom | P2P:- ‘Tenenbaum file-swapping case gets seriously funky’
That’s the headline to Nate Anderson’s Ars Technica post on the now-famous trial featuring Boston student Joel Tenenbaum, sued by Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA, but with a “crack team of CyberOne students” led by law professor Charles Nessonm, as Harvard’s CyberOne: Law in the Court of Public Opinion blog described it, in his corner.
We, too, thought it was getting a little, well, odoriferous and asked Recording Industry vs The People’s Ray Beckerman for his views on several interesting (IOHO) aspects, kicking off with »»»
p2pnet:- On first blush, it seems having a Harvard law professor and his students representing an RIAA defendant pro bono has to be a good thing. Is that how it is?
Beckerman:- If they do a good job, yes. But if they do a bad job, they could wind up doing more harm than good.
p2pnet:- That suggests they mightn`t be doing as well as might first appears
Beckerman:- Well, one thing jumps out at me. They recently sent a letter to the Justice Department asking it to intervene on the constitutionality issue. The letter, in my humble opinion, was not well thought out, because instead of attacking the constitutionality of the statutory damages statute as applied to each 99-cent transaction as though each were a separate copyright infringement, it only attacked the statute to the limited extent that it involved willfulness, and only to the extent that it attacked individuals rather than businesses.
In effect, it could be construed as conceding it`s okay to assess damages of $150,000 (or 450,000 times the actual damages) against a business for infringement of a single MP3, and that it`s okay to assess damages of $30,000 (or 85,000 times the actual damages) against an individual.
Now Anderson has a number of interesting observations, among them:
Bring in the cavalry
Back on February 13, Nesson wrote a letter to the Department of Justice, asking it to intervene in the case. Nesson didn’t claim his client was innocent – indeed, he appears to admit Tenenbaum’s guilt when it comes to downloading music. Instead, he argues that the statutory damages of up to $150,000 per song are so outrageous as to be unconstitutional.
And »»»
The letter was addressed to Ed Kneedler, the Acting Solicitor General, but the filename is actually “letter-to-elena-1.pdf,” a reference to Obama’s new pick for Solicitor General, Elena Kagan.
Kagan is awaiting Senate confirmation to the post, and her previous job was as a dean … of Harvard Law School.
Further down, “Who defended whom?” – asks a subhead, going on, “there’s the issue of whether Nesson has actually served as a lawyer for Judge [Nancy] Gertner [who's hearing the case]. The judge raised the issue back in January, noting that the two had both been involved in the same case 25 years ago but saying that Nesson had not defended her (as a defense lawyer at the time, Gertner was subpoenaed by the prosecution; she objected and fought the subpoena attempt).”
Says a post in Beckerman’s RIvTP:
“In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has filed a document disclosing her previous connections to various counsel connected with the case:
“Judge Nancy Gertner: Electronic ORDER entered — Notice: It has come to the Courts attention that there was a factual error in the Courts notice of January 13, 2009. Twenty five years ago, five attorneys were subpoenaed in the litigation referred to in In re Grand Jury Matters, 593 F. Supp. 103 (D. N. H. 1984). While Mr. Nesson, counsel for defendant Tenenbaum, did not represent Judge Gertner in the district court proceedings, as was noted in the January 13, 2009 entry, he did represent all of the Massachusetts defendants, including the Court, and filed a consolidated brief filed on their behalf on appeal in In re Grand Jury Matters, 751 F. 2d 13 (1st Cir. 1984). New Hampshire lawyers were separately represented. Briefs supporting the defendants were also filed by the New Hampshire Bar Association, the National Association of Criminal Defense Lawyers, among other national and local organizations. The Court also wishes to point out that Judge Gertner had been a partner in the firm serving as local counsel to the plaintiffs, Dwyer & Collora (then known as Dwyer, Collora & Gertner). Daniel Cloherty, who joined the firm after Judge Gertner became a District Court judge, has entered an appearance on their behalf.(Gertner, Nancy) ”
Back to Ars Technica, it adds »»»
Finally, there’s the webcast issue. Nesson and his students have pushed hard to have the entire trial streamed online. Gertner said she would allow it for one hearing and consider it for the whole trial. The RIAA appealed, and the appeals court agreed to look into the matter.
Gertner had previously indicated that she had the discretion to allow recording under First Circuit rules, and neither Nesson nor the RIAA suggested that the First Circuit had ruled differently (the RIAA didn’t believe she should allow the webcast, but for different reasons). So it seems fairly embarrassing to all parties when the appeals court recently issued a terse statement (PDF) saying that “no party has yet addressed” a 1996 resolution passed by the Judicial Council of the First Circuit.
That resolution states clearly that judges in the First Circuit should “continue to bar the taking of photographs and radio and television coverage of proceedings in the United States district courts within the circuit, except as otherwise provided for ceremonial occasions.”
This, in other words, was the statement which Gertner believed not to exist, and which nobody else appeared to dig up, either. Whoops.
The webcast issue, says Anderson, is on hold pending the appeals court’s ruling, “but the delay has already pushed back the start of Tenenbaum’s trial from March into June, at the earliest.
“Before then, we’ll find out if Nesson will be sanctioned by the judge for his own attempt to depose one of the music industry lawyers in the case, and to hold the deposition in a large Harvard hall.”
Could the “industry lawyer” be Matt ‘The Dentist’ Oppenheim (upper right), once described by Beckerman as the RIAA’s ‘Prince of Darkness’?
Although he’s no longer employed by the RIAA, he nonetheless appears to virtually run all of the RIAA lawsuits on behalf of the Bi4 ‘trade’ agency, deciding details such as the amount victims will be ordered to pay in RIAA extortion ’settlements’..
He’s embroiled in the Tenebaum case.
“The RIAA is threatening Nesson with Rule 11 sanctions and fighting a motion to force Matthew Oppenheim, the ex-RIAA lawyer now in private practice but who turns up like a bad penny in the background of various RIAA cases, to be deposed, said Recording Industry vs The People.
In Sony BMG Music v Tenenbaum, the RIAA has filed its papers opposing the defendant`s motion to compel the deposition of Matthew J. Oppenheim and requested that the Court award monetary sanctions under Fed. R. Civ. P. 37, says RIvTP, linking to a January 21 letter in which RIAA hired lawyer Timothy M. Reynolds threatens Nesson with Rule 11 or Rule 37 sanctions (Plaintiffs` Response to Defendant`s Motion to Compel Deposition of Matthew J. Oppenheim and Exhibit A â January 21, 2009, Letter of Timothy M. Reynolds Threatening Rule 11 Sanctions).”
Stay tuned.
Ars Technica – Tenenbaum file-swapping case gets seriously funky, February 27, 2009
odoriferous – Is Tenenbaum v RIAA all it could be?, February 23, 2009
RIvTP – Judge Gertner makes disclosures of her connections to various counsel for plaintiffs and defendant in SONY v. Tenenbaum, March 2, 2009
Matt ‘The Dentist’ Oppenheim – The RIAA`s Prince of Darkness, December 8, 2008
embroiled – RIAA goes after Harvard prof Charles Nesson, January 23, 2009
Recording Industry vs The People – RIAA threatens Prof. Nesson with Rule 11 sanctions, then opposes motion to compel Matthew Oppenheim deposition in SONY BMG Music v. Tenenbaum, January 22, 2009
Use free p2pnet newsfeeds for your site. It`s really easy!
Subscribe to p2pnet.net | | rss feed: http://p2pnet.net/p2p.rss | | Mobile – http://p2pnet.net/index-wml.php
Net access blocked by government restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.
March 2nd, 2009 at 10:50 am
I wonder is Nate Anderson can be bothered to research some of the RIAA lawyers shenannigans ?
The list of questionable legal maneuvering is very extensive, and part pf ALL of the cases they
are involved in. Why THEY haven’t been sanctioned already is difficult to understand.