p2pnet news view RIAA | P2P:- Harvard law professor Charles Nesson has apologised to judge Nancy Gertner for wasting her time in the Joel Tenenbaum vs the RIAA trial in which he and a team of young Harvard lawyers are representing the victim.

But Recording Industry vs The People’s Ray Beckerman (right) says it’s not only Nesson who should be saying ‘Sorry!’

The trial has been a farce since Day One from all perspectives, he says, citing not only Nesson and the RIAA, but also judge Gertner herself.

Heavy duty legal manpower

‘Tenenbaum file-swapping case gets seriously funky,’ was the headline to an 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.

Earlier, I’d wondered if things were as wonderful as they’d been cracked up to be, posting »»»

‘If one lawyer can act for three or four, or more, clients simultaneously, just imagine what an entire team of keen young professionals with the incomparable resources of Harvard behind them, and a veteran law professor at the helm, will be able to do,’ I thought to myself. I even made several references to this possibility in emails to one of the team members.

So I’ve been surprised and disappointed to notice this pool of heavy duty legal manpower seems instead to be locked into this single case, despite the fact Massachusetts unfortunately has a substantial supply of unrepresented defendants, with the extortionate ’settlements’ and ‘default judgments’ rolling in against them on a seemingly continuous basis.

I also wondered how Recording Industry vs The People’s Ray Beckerman saw the situation, saying, “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.

Needless to say, both of those eventualities are outlandish. I`m sure the RIAA would be  glad to get $30,000 per song file from Joel Tenenbaum. Even the ridiculous Jammie Thomas  verdict of $220,000 was for less than that — $9,250 per song file, to be exact. So what professor Nesson was accomplishing by such a letter is beyond me. I hope he retracts it, and quickly.

‘Stinging slap on the wrist’

Then, “In SONY BMG Music v Tenenbaum, [read RIAA vs Harvard student lawyers] judge Gertner has given Harvard law professor Charles Nesson a stinging slap on the wrist,” said p2pnet, going on »»»

She`s issued an order denying defendant`s motion to compel the deposition of Matthew Oppenheim, and suggesting that the motion was frivolous, says Recording Industry vs The People.

Excess Copyright has a salient quote from Gertner`s decision:

While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation — a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise.

The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs` time and money or scarce judicial resources by filing frivolous motions in the future.

Order denying motion to compel deposition of Matthew Oppenheim

Internet Law & Regulation>Also see -Copyrights and Campaigns

‘Please don’t think you can learn anything from this case’

Now,  Nesson has filed an apology, says Beckerman.

In it, Nesson states »»»

I made a mistake by not withdrawing my motion to compel Matthew Oppenheim’’s deposition immediately after the January 22 date had passed. I acknowledge and apologise to this, both to you and to my opponents.  I wasted the Court’s time. I take seriously the Court’s warning about imposing sanctions. I thank you for not imposing them.  I will make amends.

However,”To you law students and young lawyers out there; please don’t think you can learn anything from this case,” says Beckerman, going on »»»

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, ie, Prof. Nesson should be apologizing to his client, and to all the other defendants whose cases he might be hurting.

UPDATE – 7:50 am Pacific:- “Make no mistake about it: we are a student run team,” says Debbie Rosenbaum on Joel Fights Back.

“As students, and under the guidance of Professor Nesson, we write all of our own briefs, create our own strategy, and deal directly with the RIAA`s litigation machine,” she says, adding:

“It is with great excitement that we’ve asked life-long Boston litigator, Matt Feinberg, to join our team as a special mentor.

“We aren’t trying to lead a movement against music or copyright or adequate compensation for artists. We’re just trying to defend Joel.

“But we know the stakes are high. And that`s why we’re gathering the best talent there is.”

Says Nesson in a comment post, “make no mistake, we are a faculty run team, with me as Joel`s lawyer, captain and supervisor of the team, delighted that matt will join us.”

Definitely stay tuned.

Jon Newton – p2pnet

March, 2009

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