Dear Mr. Justice Breyer:

By an oversight I cannot explain, an earlier letter addressed to Mr. Justice Souter and delivered June 26, 2009, was not successfully filed and entered on the Supreme Court docket. Its substance, which is still timely, is reproduced below, but with the additional information pertinent to you that your son Michael is a principle in the company that would do the operational work of digital transmission if the request below were to be granted. Anticipating recusal, I ask if possible that our request be referred to the Chief Justice.

I am the Weld Professor of Law at Harvard Law School and founder of the Berkman Center for Internet & Society at Harvard University. I represent (pro bono) Joel Tennenbaum, a student being prosecuted by the RIAA for downloading and sharing music through a peer-to-peer network, Sony BMG Music Entertainment, et al., v. Joel Tenenbaum, consolidated to Capitol Records, Inc., et al. v. Noor Alaujan, No. 03-cv-11661-NG (D. Mass.).
On the defendant’s own behalf and on behalf of the digital public, Defendant Tenenbaum moved to establish public access through internet to gavel to gavel coverage of the public proceedings in the case, starting with pretrial proceedings. District Judge Gertner granted this motion with respect the public pretrial proceeding scheduled for January 24, 2009, involving argument of motions, and indicated that further requests pertaining to internet public access for later proceedings and trial would be entertained. The courtroom’s already installed equipment was to be used to capture and narrowcast the proceeding to the Berkman Center for Internet & Society at Harvard University, which would in turn serve it to and share it with open net. See Capitol Records, Inc., et al. v. Alaujan, 593 F.Supp.2d 319.

This plan was frustrated by an extraordinary writ of advisory mandamus issued by the First Circuit Court of Appeals barring Judge Gertner from allowing this public access to her courtroom. The First Circuit panel declared that Local Rule 83.3 of the District Court denied Judge Gerter any and all authority to allow digital recording in her court. See In re Sony BMG Entertainment, et al., 561 F.3d 1. A request for hearing en banc was denied on April 30, 2009. A petition for certiorari to the Supreme Court of the United States was filed on June 2, 2009 and is now pending, docketed as No. 08-1506.

The trial of this case is scheduled to begin July 27, 2009. Judge Gertner will abide by the First Circuit order of prohibition unless it is stayed or overturned.

To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. The issues in this case are of particular concern to the digital generation and to the future of the internet.

I respectfully request that either you or Chief Justice Roberts suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the full Supreme Court of our petition for certiorari.

Absent the requested suspension of the rule or stay of the trial, the petition for certiorari will be moot.

For these reasons, we respectfully seek your assistance.

Respectfully submitted,

Charles Nesson
Counsel for Petitioner Joel Tenenbaum

CERTIFICATE OF SERVICE

I, the undersigned counsel, hereby certify that on June 26, 2009, pursuant to Rule 29 of this Court, I caused the attached letter to be served on counsel of record for the Respondents in this action by United States Postal Service, first class, at the following addresses:

Daniel J. Cloherty
Victoria L. Steinberg
Dwyer & Collora LLP
600 Atlantic Avenue, 12th Floor
Boston, MA 02210

Eve G. Burton
Timothy M. Reynolds
Holme Roberts & Owen LLP
17 Lincoln, Suite 4100
Denver, CO 80203

__________________________
Charles Nesson
Counsel for the Petitioner

the early investors in ponzi schemes give them their credibility
others are then let in on their profits and their cache

jamaica has been similarly hit, with ponzi schemes styled for both rich and poor, olints and cash plus

poor people put their savings in because they have no other way to make money
same with rich people, sort of

draft lessig
to be chairman of the fcc

put the net in the hands of people who love it

Forwarded conversation
Subject: obama platform
————————

From: Charles Nesson
Date: Sat, Jul 26, 2008 at 9:44 AM
To: Lawrence Lessig

on monday night (july 28) i am hosting a Listen to America platform meeting on Internet Democracy and Education.
where better to start than with your thought. what would you say is platform number one?

———-
From: Lawrence Lessig
Date: Sat, Jul 26, 2008 at 6:13 PM
To: Charles Nesson

trust.

——-
From: Charles Nesson
Date: Sun, Jul 27, 2008 at 8:40 AM
To: Lawrence Lessig

you put a . after trust

trust what
trust whom
trust why

———-
From: Lawrence Lessig
Date: Sun, Jul 27, 2008 at 7:50 PM
To: Charles Nesson

trust in the very idea of government. that differences might be differences of good faith. that agreement might be won for the right reason.

i want to thank everybody for coming here today and especially the people who were here from the beginning

eric wiseman
tom smuts
dave marglin
jon zittrain
john perry barlow
larry lessig
alex and wendy
myles berkman
fern and eric saltzman

we are here to talk about the future of the net.

my vision of the future of the net is the same as the vision i enunciated ten years ago.

cyberspace is an integrated media realm of stories told and shared by digitally connected and enabled hearts and minds.
WE are the Future of the Internet. We have good stories to live and to tell.
let us make our stories represent our values of
open code
open access
open talk
open education
let’s bridge the digital divide
let’s build the commons of the net

give thanks with a grateful heart

respect and thanks to Jamaica Correctional Comissioner Richard Reese and his team

————————

From: John Palfrey
Date: Mon, Feb 25, 2008 at 5:53 PM
To: Staff List , faculty , Berkman Fellows
Cc: Tim Wu

Hi all:

Best,
John

–
John Palfrey
e: jpalfrey @law.harvard.edu
p: 617-384-9132
w: http://blogs.law.harvard.edu/palfrey/

———-
From: William Fisher
Date: Mon, Feb 25, 2008 at 6:00 PM
To: John Palfrey
Cc: Staff List , faculty, Berkman Fellows, Tim Wu

I want to add my thanks to John’s. It was an extraordinary event –
probably the best governmental hearing I’ve ever attended. The
combination of excellent panels and the freewheeling questioning by
the commissioners was very informative. Thanks to all for putting it
together — so well and so fast.

Terry

———-
From: Yochai Benkler
Date: Mon, Feb 25, 2008 at 6:59 PM
To: faculty @eon
Cc: John Palfrey, Staff List, faculty, Berkman Fellows, Tim Wu

Just to add my thanks. It was extraordinary to see how seamlessley this all
went, and with what enormous turnout (including what seemed to be the Comcast Cheerleaders Brigade…) and crisp conversation.

———-

From: John Palfrey
Date: Tue, Feb 26, 2008 at 7:36 AM
To: Staff , faculty , Fellows

From our friend Tim Wu:
w: http://blogs.law.harvard.edu/palfrey/

—–Original Message—–
From: Tim Wu

Date: Mon, 25 Feb 2008 18:32:39
To:John Palfrey
Cc:Staff List ,faculty ,Berkman Fellows
Subject: Re: FCC event today

John,

TW

Tim Wu
wu @pobox.com

–
when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

From: Larry Tribe
Date: Mon, Feb 25, 2008 at 5:59 AM
To:  lessig at lessig08.org
Cc: jpalfrey, Elizabeth Warren , nesson, William Fisher , zittrain

Hey, Larry — What exciting news! I very much hope it works out. I’ll do what I can to support you, including coming to (and maybe co-hosting) the March 13 breakfast event for you in Cambridge. – Larry Tribe
———-
From: Charles Nesson
Date: Mon, Feb 25, 2008 at 6:22 AM
To: Larry Tribe
Cc:  lessig at lessig08.org, jpalfrey, Elizabeth Warren , William Fisher , zittrain

–
when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

———-
From: Larry Tribe
Date: Mon, Feb 25, 2008 at 7:08 AM
To: Charles Nesson

Charlie, this email contained no message. Did you mean to send me something?

———-
From: Charles Nesson
Date: Mon, Feb 25, 2008 at 7:58 AM
To: Larry Tribe

sorry. actually, i was thinking we should issue a press release announcing your support. i was about to ask your permission to do this and hit send instead of save by mistake. i’ve been blogging about it this morning and looking for other support. thanks for yours. the Change Congress strategy larry has adopted seems both practical and effective.

nice to see you in the square. you look fit. i hope you are well, considering all.
———-
From: Larry Tribe
Date: Mon, Feb 25, 2008 at 8:13 AM
To: Charles Nesson
Cc: Kathy McGillicuddy

Larry

———-
From: Lawrence Lessig
Date: Mon, Feb 25, 2008 at 10:10 AM
To: Charles Nesson
Cc: Larry Tribe ,  lessig at lessig08.org, jpalfrey, Elizabeth Warren , nesson, William Fisher , zittrain

Thank you Larry and Charlie,

I’m grateful to everyone for their support. As you know, I don’t shy away from losing. But choosing to lose in a way that is certain to harm the movement is not yet a disease I have.

—–
Lessig
Stanford Law School
———-

From: Larry Tribe
Date: Mon, Feb 25, 2008 at 10:53 AM
To: Lawrence Lessig , Charles Nesson
Cc: jpalfrey, Elizabeth Warren , nesson, William Fisher , zittrain

I understand and, based on your data, certainly concur. A noble impulse, though, for which I’d commend you. — Larry
———-
From: John Palfrey
Date: Mon, Feb 25, 2008 at 11:10 AM
To: Larry Tribe , Lawrence Lessig , Charles Nesson
Cc:  lessig at lessig08.org, Elizabeth Warren , “Charles Nesson @ Law” , “Terry Fisher @ Law” , Jonathan Zittrain

Seconded!

John

–
John Palfrey
e: jpalfrey @law.harvard.edu
p: 617-384-9132
w: http://blogs.law.harvard.edu/palfrey/
———-

From: Charles Nesson
Date: Mon, Feb 25, 2008 at 10:21 AM
To: Lawrence Lessig
Cc: Larry Tribe , jpalfrey, Elizabeth Warren , William Fisher , zittrain

i see your logic and respect your judgment
might you ask your would-be opponent to run on the CC Campaign
———-

From: Lawrence Lessig
Date: Mon, Feb 25, 2008 at 10:28 AM
To: Charles Nesson
Cc: Larry Tribe , Elizabeth Warren , William Fisher , zittrain

Another Member of Congress, supportive of our work, is asking that directly. It would be a logical thing for her to do, and costless, since she does not need lobbyist/PAC money to survive in the safe district in which I live.
———-

From: Charles Nesson
Date: Mon, Feb 25, 2008 at 10:25 AM
To: Jonathan Cohen

am i crazy for thinking there is a great human interest/political story in this
– lessig’s almost run for congress and formation of a Change Congress Campaign–

———-
From: Jonathan Cohen
Date: Mon, Feb 25, 2008 at 11:20 AM
To: Charles Nesson

Better story (IMO) is how Lessig’s dalliance inspired someone else, and how the open culture movement is getting behind that person or preparing to find an open seat and and a candidate elsewhere.

Jonathan R. Cohen
President
The Weiser Group
232 Madison Avenue
Suite 204
New York, NY 10016
jcohen@ weisergroup.com
Office: (646) 254-6000 ext. 12

“…there is one striking feature of Grant’s orders: no matter how hurriedly
he may write them on the field, no one ever has the slightest doubt as to
their meaning, or even has to read them over a second time to understand them.”

–
when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

im-the-real-charlie-nesson.mp3

my-name-is-charlie-nesson.mp3

slideshow of open university opening up

GPSTSBusiness – 16 Feb 2008
subject Fwd: bracken on obama on the

i want license to use the wire in my online school. is this within the realm of fair use. i want colvin and pryzbylewski in my classrooms. i want to take it with me in a box to kingston prison and run my class for real in our prison lab. omar, as obama says, is a man of character playing by his code. the lessons of the wire are profound

———- Forwarded message ———-
From: wayne marshall
Date: 2008/1/15
Subject: bracken on obama on the wire!
To: Charles Nesson

  http://creativecommons.org/licenses/by-sa/3.0/ http://blogs.law.harvard.edu/nesson/2008/01/30/inner-mind/ http://blogs.law.harvard.edu/nesson/2008/01/30/inner-mind/#comments Wed, 30 Jan 2008 12:51:55 +0000 nesson http://blogs.law.harvard.edu/nesson/2008/01/30/inner-mind/ where does it go from how crazy is that
should it go crazy
off into the eon dance
should it go sane

sponsored by Do Not Click dot Org

DoNotClick.org’s power lies in its simplicity. The project’s main argument is that actions taken on the web have real consequences. When I initially saw this argument, my first thought was, “well, duh.” Obviously what I do on the internet affects the real word – when I buy books on Amazon.com, they show up on my door (with Amazon.com SuperSaver™ savings!) 5-9 business days later, as promised; when I register for classes on the Harvard MyPlan website, I get stuck in the queue for forty minutes and them am booted from the interface, just as expected. But as I read deeper into DoNotClick.org I found that my opinions about the nature of the internet weren’t as objective and informed as I had imagined.

It is the implicit position of most internet users that actions taken on the internet have no consequences. The nature of the internet fosters a set of assumptions and attitudes that can make a user feel that he or she inhabits a space of complete anonymity and, as DoNotClick.org shows, this sense of (false!) anonymity can have expensive, even disastrous consequences.

What makes this argument so effective is that it presents an overt message that seems so intuitive as to be obvious, and then shows just how counterintuitive that message actually is.

Visitors to DoNotClick.org inhabit both sides of the argument by first presenting a position that almost anyone can agree with (clicking has consequences) and then showing how the person being argued to is, in fact, you, the internet user with all your assumptions about anonymity – a really nice, satisfying, and powerful maneuver.