Intellectual Property Law

RIAA Seeks Web Removal of ?Illegal? Court Recordings

By David Kravets

The Recording Industry Association of America on Monday demanded a federal judge order Harvard University’s Charles Nesson to remove from the internet “unauthorized and illegal recordings” of pretrial hearings and depositions in a file-sharing lawsuit headed to trial.

“Enough is enough. For the past five months, this court has repeatedly warned defense counsel regarding his insistence on engaging unauthorized and illegal recordings of counsel and proceedings in this case,” RIAA attorney Daniel Cloherty wrote (.pdf) U.S. District Judge Nancy Gertner of Massachusetts. Cloherty urged the court to sanction Nesson, the founder of the 12-year-old Berkman Center for Internet and Society at Harvard University.

“The idea that a court is being asked by them to order educational material to be removed from the Berkman Center for Internet and Society website seems a questionable intrusion both on my liberty and the public interest,” said Nesson in a telephone interview. “I certainly don’t agree that I am violating any law.”

The case concerns former Boston University student Joel Tenenbaum, who Nesson is defending in an RIAA civil lawsuit accusing him of file-sharing copyrighted music. Jury selection is scheduled in three weeks, in what is shaping up to be the RIAA’s second of about 30,000 cases against individuals to reach trial.

The labels, represented by the RIAA, on Monday cited a series of examples in which they accuse Nesson of violating court orders and privacy laws by posting audio to his blog or to the Berkman site. Among them, they include:

• In a 2008 deposition of his client, “a surreptitious recording,” that included “confidential communications between the attorneys involved in the case.”

• A January telephone conversation between the judge and RIAA lawyers “without the prior consent of participants.”

• The July 1 deposition of defense copyright expert John Palfrey, which Nesson was also simultaneously twittering.

• The July 2-3 deposition of defense peer-to-peer expert Johan Pouwelse, which Nesson is accused of videotaping.

Judge Gertner, in February, issued an order in response to RIAA complaints about  unauthorized recordings. “The parties are advised that any such recording without permission of participants, as well as the broadcast of such communications, runs afoul” (pdf) of state law. On June 16, Gertner said such taping was a “violation of the law.”

Still, Nesson took Monday’s court filing in stride. At one point, he said he had been “unaware” of the Massachusetts law requiring all parties of a communication consent to its recording.

“I have to say I was completely unaware of this Massachusetts law. When I dug into this thing, I am amazed to what it purports to be,” said Nesson, who is defending the Tenenbaum case for free.

He labeled as “gobbledygook” the felony privacy law that is punishable by up to five years in prison.

“That is so outrageously unconstitutional that I would prefer myself to honor the United States Constitution and take my chances that recording a conversation with a judge in a federal case and opposing lawyers is somehow in violation of a Massachusetts statute that makes me a felon,” Nesson said.

Nesson, who has attempted but so far failed to get the upcoming trial and pretrial proceedings webcast, said the lawsuit’s proceedings should be in the public domain.

“I’m opening it up,” he said. “That’s what I founded the Berkman Center to fight for.”

See Also:

• In Internet First, RIAA File Sharing Hearing to Be Webcast …
• Court Bars RIAA Trial Webcast
• A Case of Free Speech Boundaries
• File-Share With Immunity: Go to Harvard
• RIAA Fears ‘Manipulation’ of Courtroom Web Broadcast
• Appeals Court Weighs RIAA Trial Broadcast
• File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA …

Full post as published by Threat Level on July 06, 2009 (boomark / email).