BOSTON — Harvard Law School professor Charles Nesson faces possible court sanctions for an Internet posting of deposition excerpts from his defense of a college student facing copyright infringement charges for illegal Internet music downloads.
Nesson is representing Boston University student Joel Tenenbaum in Capital Records Inc. v. Alaujan, a District of Massachusetts case that several record companies and the Recording Industry Association of America (RIAA) filed against the students.
On July 9, Nesson responded to Judge Nancy Gertner’s July 7 electronic order demanding a memo explaining why Tenenbaum or Nesson should not be sanctioned for Nessons’ posting of parts of a deposition on Harvard Law School’s Berkman Center for Internet & Society Web site.
Gertner noted that her oral and written orders “made clear” that deposition recordings were permitted but “not to be made public via the Internet.”
Nesson did not respond to calls and e-mails requesting comments. Debbie Rosenbaum, a Harvard Law School student attorney working with Nesson on the case, said in an e-mail that Nesson’s comments are in his brief.
The sanctions fight is one of several recent setbacks for Nesson. Last month, Gertner denied Tenenbaum’s counterclaims against all the plaintiffs and denied his bid to add the RIAA as a party to the counterclaims.
In April, the U.S. Court of Appeals for the 1st Circuit reversed a Gertner order to allow Webcasting of a hearing in the case. The 1st Circuit ruled that the confluence of a local rule, a Judicial Conference of the United States policy and a 1st Circuit Judicial Council resolution barred gavel-to-gavel Webcasting.
Nesson’s brief about the sanctions stated that he “felt it necessary to approach (but hopefully not cross)” the court’s authority to circumscribe his and his client’s liberty “to record the history of the process to which he is forced to submit.”
Nesson’s memo also rebutted the plaintiffs’ assertions that he made secret recordings of the depositions. He also noted that the posting is on his blog, which the Berkman Center does not endorse or review.
Nesson’s memo claimed he only posted about six minutes of the plaintiffs’ lawyer’s remarks to himself and the witness, another Harvard Law professor affiliated with the Berkman Center.
According to Nesson’s memo, the remarks showed how the plaintiffs’ lawyers were trying to limit how the two professors could write about the event on blogs and through Twitter. “Plaintiffs counsel’s attempts to restrict the witness and myself from expressing ourselves this way is, I hope, outside the letter and scope of the Court’s order,” stated Nesson. “My Internet posting of my objections relates only to the issues of free speech and public access. What is posted is not testimony from the deposition and was neither intended to nor capable of tainting the jury pool.”
Nesson’s memo also insists that the plaintiffs’ motion for sanctions “should be seen for what it is: a tactic to distract and sap the energy, and resources and reputations of those they oppose.”
The RIAA, which comments on behalf of the plaintiffs’ lawyers in the case, called the allegations “absurd.”
Jennifer Pariser, the RIAA’s senior vice president of legal affairs, said that its ongoing battle with opposing counsel about his defiance of court orders during every deposition is what’s distracting. “And that follows the massive waste of time committed to counsel’s effort have the court proceedings broadcast,” Pariser said. “Professor Nesson even cited that effort as an excuse for missing discovery deadlines in the case. We have been trying to get this case focused on the merits for months, to little avail.”
On July 6, the plaintiffs’ lawyers filed their own motion for sanctions and motion to compel the defense lawyers from making unauthorized recordings.
In that motion, the plaintiffs’ side asked the court to take several steps against Nesson, including imposing monetary sanctions; ordering him to remove case-related discovery materials from the Internet; banning him from making future unofficial recordings; ordering him to destroy copies of a certain deposition video recording; and ordering that the discovery materials can only be used for this litigation.
The memo called Nesson’s disregard for the court’s orders concerning recording “extraordinarily time-consuming and distracting.”
“Plaintiffs and their counsel…have no desire for their faces and voices to become part of a large web-campaign led by Mr. Nesson and the Berkman Center nor part of Mr. Nesson’s future teaching materials,” stated the plaintiffs’ memo. “The law allows Plaintiffs to opt out of such spectacle, and the Plaintiffs and their counsel have repeatedly indicated that they do not consent to the recordings.”