Tuesday, July 07, 2009

Order to show cause issued by Judge Gertner to defendant for sanctions for violation of court order in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, defendant has been ordered to show cause why he or his counsel should not be sanctioned for violation of the Court's order regarding unauthorized reproduction.

Judge Nancy Gertner: Electronic ORDER entered; "The Court is deeply concerned that the Defendant has violated the Court's June 16, 2009 Order [850] as well as the Court's oral order at the June 26, 2009 hearing. Both orders made clear that deposition recordings, while permitted within the terms of Rule 30(b)(3), were not to be made public via the internet. Indeed, at the hearing, the Court said that "recording" the upcoming deposition did not mean "posting it on the internet," to which Mr. Nesson replied, "Okay. Thank you." Although Mr. Nesson did not object to the order, seek to clarify it, or raise any issue with respect to either the fact of the order or its breadth, he nevertheless made portions of the Palfrey deposition available to the public on the Berkman Center website. See http://cyber.law.harvard.edu/~nesson/palfrey%20_deposition01.mp3 (last visited July 7, 2009); http://cyber.law.harvard.edu/~nesson/after_my_tweet.mp3 (last visited July 7, 2009). As a result, the Defendant is hereby ORDERED to SHOW CAUSE, by July 9, 2009, why he or his counsel should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case."
[Ed. note. Can someone tell me why the order to show cause should be against Mr. Tenenbaum, as opposed to his counsel? What did Joel Tenenbaum have to do with any of this? And if the order to show cause is against Mr. Tenenbaum, shouldn't he have independent counsel? -R.B.]



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15 comments:

derivative said...

I was hoping you could explain it. You're the lawyer :)

Ray Beckerman said...

I have long ago said that I don't care to cover this case, because of the .... shall we say.... 'unusual' behavior of the lawyers for both sides.

Due to popular demand I am still covering it.

But don't ask me to 'explain' anything that goes on here.

DreadWingKnight said...

I remember seeing somewhere recently (although I might be wrong on this) that Mr. Nesson is posting them for constitutional reasons.

http://www.wired.com/threatlevel/2009/07/nesson/

I don't know if there is grounds for this, but if there is, more power to him.

Sebastien said...

Well, the only thing I can think of is that Nelson is Joel's Representative in this matter, and it is being implied that the violations are being done at the behest of Joel?

On the bright side, Joel if he loses, has an amazing case for an appeal based on WTFWYLT. (What the F Was Your Lawyer Thinking)

SVartalf said...

Heh...don't blame you there, Ray. I'd say there's quite a bit of "off" going on in this case to go around for everyone for some time to come.

PeterofOz said...

What is interesting to me is how the RIAA does not want public scrutiny as to what they are doing. Americans need to keep a spotlight on all this to keep it above board.

Anonymous said...

Ray, I withdraw my request that you keep covering this case. The only question that interests me here is whether the judge can separate Tenenbaum's actions from his attorney's, since I believe fairness dictates he should...

XYZZY

Anonymous said...

They know that what they are doing is wrong. Otherwise they would have no problem with it being public. Props to him for trying to expose the ignorance that takes place in those so-called "halls of justice". Open source the courts!

Shane said...

Ah, I remember fondly how I once looked forward to seeing the RIAA trounced in this litigation.

Well, oddity that it is, I'm still glad you are covering it Ray, it is too significant to ignore, in spite of the disappointing level of legal discourse seen in the exchanges. But, I do like KAD Camera's briefs with Nesson, even if Camera did manage to miss a number of points in trial for Thomas-Rasset.

Most of all, though, I've been disappointed by how easily much of the judiciary seems to be swayed by the RIAA, and it is hard to believe that some of the judiciary are not unduly, though perhaps subconsciously, prejudiced in favor of industry in some of these proceedings, for the leeway that has often been granted to the RIAA in terms of procedure and evidence seems extraordinary, as demonstrated in your fantasy of how litigation like this should work if normal litigation practice were applied.

Ray Beckerman said...

Anonymous PeterOfOz:

Yes, they (a) don't want to allow any cost savings for defendants, and (b) don't want to get caught in their innumerable contradictions.

Which is why they are always trying to keep everything secret.

Anonymous said...

Ray, I know you don't want to (and maybe can't) explain this, but am I wrong in thinking that there was probably a better way to go about this that wouldn't have made the Judge mad?

In other words, can you tell us if we're looking at crazy like a fox, or just plain crazy here?

Or maybe a better way to ask it: if you were the lawyer and you wanted to post the recordings online, what would you do?

Ray Beckerman said...

Me, I just obey the Judges' orders, and follow the court rules. I'm funny that way.

Albert said...

I wonder if the RIAA and Recording Industry plaintiffs will just as mad if/when the Official Transscripts are put on the web.......

Sorry RIAA, the cat is out of the bag, those mp3's are mirrored around the world, and the story WILL get out, regardless of your efforts.

We may not see it now, but maybe part of this is the conflict between the First Amendment right to publish, and the rights of the RIAA to try to keep other people from finding out about what has happened in prior cases, likely so the RIAA would have an upper hand.

In this case, the recording is raw unedited news of things that have happened, and the RIAA does not want this information known. Under the First Amendment, noone should be stopping the news reporting.

We all know the RIAA is not happy with this very blog, even though all you have published is available at the Courthouse. Im sure they hate there is a central source where people can go to and see the tactics of RIAA and the Big 4, and what defenses have been used, along with comments.

Since you have restricted your postings to the official paperwork, they have little chance of stopping this blog. However, it does look to me this attorney is pushing it a bit farther, trying to get established where is that First Amendment line, and what is the right of the People to know what is going on in Federal Court. Good or Bad, I wish the Defendants luck. I think the First and Public trial clause speaks in favor of full disclosure.

Albert

Anonymous #5 said...

The MP3 cuts off before the Q&A of the deposition starts and is just Mr. Oppenheim explaining that he should speak clearly and not over him and other standard procedure stuff. I'm sure Dr. Nelson is going to argue that the deposition had not start yet, thus he did not violate the courts order.

He is neglecting the fact that the judge made it clear that he was not to be recording people without their prior consent.

Anonymous #5

Anonymous said...

Anonymous #5,

Do you have reason to believe there was no consent, other than the word of Plaintiffs' attorney? If not, and if he didn't violate the judge's specific order by stopping recording prior to the deposition itself, then maybe he'll squeak by this time.

XYZZY