eon

Hello Professor Nesson,

Your case was being discussed on slashdot and one poster brought up the
RIAA propaganda at the beginning of most films comparing downloading to
theft of cars and handbags etc. He made the point that they are tainting
the jury pool with lies and even suggested the possibility of sanctions
against them.

I don’t know if that’s realistic, but the post is here:
http://slashdot.org/comments.pl?sid=1293609&cid=28605713
I hope it helps in some way.

Regards
Rohan Walsh

Copyright laws threaten our online freedom

By Christian Engström

File-sharing occurs whenever one individual sends a file to another. The only way to even try to limit this process is to monitor all communication between ordinary people. Despite the crackdown on Napster, Kazaa and other peer-to-peer services over the past decade, the volume of file-sharing has grown exponentially. Even if the authorities closed down all other possibilities, people could still send copyrighted files as attachments to e-mails or through private networks. If people start doing that, should we give the government the right to monitor all mail and all encrypted networks? Whenever there are ways of communicating in private, they will be used to share copyrighted material. If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.

—
morning walk before joel’s deposition

july8-09-1.mp3

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

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

At no point have i been surreptitious. the issue is not “secret” recording but “unconsented.” i put the recorder on the table red light on. i responded that the phone conference with court and opposing counsel with my twenty students present was being recorded and put my objections on the digital record before turning the recorder off. Without a digital record the event is lost to cyberspace.

* 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.

The Court spoke on the issue of the recording of depositions in its June 16, 2009 Order: “The Defendant is permitted to record the remaining depositions in any manner consistent with the requirements of Fed. R. Civ. P. 30(b)(3). Fed. R. Civ. P. 30(b)(3) states that ” testimony may be recorded by audio, audiovisual, or stenographic means. RIAA was most certainly on notice that I was planning to record; that’s what our oral argument before the court and the court’s ruling was about.

The portions of the Palfrey deposition posted on my website relate to deposition instructions and Mr. Oppenheim’s objection to my twittering. They in no way relate to what Mr. Oppenheim considers to be the substance of the case, and provide no basis whatever for imagining that the posting would taint the jury pool.

From: Charles Nesson
Date: Tue, Jul 7, 2009 at 6:12 AM
To: Nicholas Negroponte
Cc: Kevin Wallen , CALEEN DIEDRICK , tHINKbANK , wayne brown

nicholas, i have just received email from four of the students in the SET summer program started today in jamaica. tomorrow i should connect with the rest of the class and begin freerice competition. how can i connect this group with another group on another island, like new zealand?

exciting. more to come

:<)

—–

shavell smalling
to me

Hello
My name is shavell smalling. I am 13 years old. I live at 2west greater
portmore.
My hobbies are singing, dancing and socializing with friends.
I am a little shy and don’t like to be shot at.
I am a nice, strong and helpful girl.

audio deleted, with regret

and then i twittered

and when we came back from the break oppenheim objected. sorry i didn’t get my recorder back on for his words. the recording picks up with palfrey asking for clarification of the publication constraints he is under.

after my tweet

wayne\'s tweets

no ruling yet on whether wayne will be allowed to testify

but please, read this
thank you wayne, however this goes

The Pirate Bay is now getting acquired by Swedish firm Global Gaming Factory X AB (GGF), according to announcements by both companies. The price tag is 60 million Swedish kronor ($7.83 million, 5.5 million euros at current exchange rates). GGF disclosed the intended buyout in Stockholm this morning.

congratulations on bringing us so far. let the process of innovation go on. we don’t compete with money. selling out is not a sin

june 29, we go this morning before judge gertner with all discovery issues on the table. the questions we ask define what we consider to be relevant. the answers to the question of whether we are entitled to ask the questions we ask are statements by the law which admits evidence to the jury of the defendants’ peers if the answers to the questions we ask might make a difference to a reasonable juror. Federal Rules of Evidence 102, 104(b), 401, 403.

Rule 102. Purpose and Construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

a jury of the defendant’s peers is called upon to decide the fate of a man brought before it by force under rules that express the wisdom and justice of American law.

the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself. The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) (emphasis in original).

law of the law lord is wisdom in its making, justice in the application

wisdom comes from we the people. the function of the rules of civil procedure and evidence is to shape the issue and the body of evidence the jury of the defendants peers is asked to consider.

Souter

I am the Weld Professor of Law and founder of the Berkman Center for Internet and Society at the Harvard Law School. I represent (pro bono) Joel Tennenbaum, a student being prosecuted by the RIAA for downloading and sharing music on a peer to peer network. cite to case name here On his behalf and on behalf of the public, I moved that the digital public be provided access through internet to gavel to gavel recording and narrowcasting of the pretrial proceedings in this case. District Court Judge Nancy Gertner granted this motion with expectation that further requests pertaining to access for the digital public later public pretrial proceedings and to the trial would be entertained. Digital recording made with the Court’s already installed equipment was to be narrowcast to the Berkman Center which would serve it to and share it with open net. cite to her order here

This plan was frustrated by the First Circuit Court of Appeals, which issued an extraordinary writ of advisory mandamus prohibiting Judge Gertner from implementing her order, declaring that the local rules of the District Court denied her all authority to do so. cite to the 1st Circuit opinion and order here. A hearing en banc was denied on …….. A petition for certiorari to the Supreme Court of the United States was filed on …….. and is now pending. See attached.

The trial of this case is scheduled for July 27,2009. Judge Gertner has indicated that she must abide by the First Circuit order of prohibition unless it is stayed or overturned.

I request that you, as presiding justice for the First Circuit, 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 Supreme Court of the petition for certiorari in due course.

It is time to open the courts of the United States to the internet and this case is a perfect test case in which to do so. The issues in it are of particular concern to the digital generation. The legal debates about them should be digitally recorded and accessible to them. 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. Given the court’s scheduling of the trial on July 27, 2009, in the absence of the requested suspension of the rule or a stay of the trial, the petition for certiorari will be moot. For these reasons, we seek your assistance.

Respectfully submitted,

Charles Nesson
Counsel for Petitioner Joel Tenenbaum
June 25, 2009

QUESTION 1

This is evidence that law school may teach you what process is, but not how it is used. Or if it is used.

This is evidence of the flexibility of judges. Evidence of the flexibility of rules.

I have embraced Vinny. I imagined a conversation between you, your students, Judge Gertner, and Mona Lisa Vito. It was, in Judge Gertner’s words, a “moment of informality.” Is Lisa describing a deer being shot in the woods? Or is she lecturing about this procedure? The request to record this moment stems from your mission. It is what this case is about. It may not be something we can learn in law school.

Evidence is what you make of it. Context can change its impact. Maybe context can change its truth.

Of what is this evidence?

QUESTION 2

RIAA’s Best Case against Joel

“So it is said that if you know your enemies and know yourself, you will fight without danger in battles.”
-Sun Tzu, The Art of War

From the mind of the RIAA:

We must know our strengths, and Joel’s strengths, to win. Another lesson from Sun Tzu is that positioning is critical. We cannot let Joel be the “victim.” We must position ourselves as the victims. Perception is key. We cannot let the jury – or the judge, or the public at large – see this as “Joel fighting back.” It must be the RIAA fighting back, because Joel started this mess by downloading songs he didn’t have a right to. We, the RIAA, are just fighting back using the means granted us by congress.

We must let the evidence speak on our behalf. There is evidence connecting Joel to songs which were downloaded. He did not pay for these songs. They are not his. If we show this to the jury, we can win our case. Let the evidence speak (or speak for the evidence) [snip].

KISS – Keep It Simple, Stupid. Connect Joel to the IP address, or the account which downloaded these songs, or the computer that stored them. Focus on those things we can prove. We have to maintain our position as the wronged party – don’t let Joel maneuver around this.

We have to keep the jury’s focus on what matters for our case – the actual evidence of Joel downloading.

We “know ourselves” – we know that the evidence of the downloads favors us. We “know our enemy” – Joel will try to make this case about other things; he will harp on that which we cannot prove. He may use his soapbox to obfuscate the issues, but we will focus on our evidence and stay true to our position. If we know ourselves and know Joel’s interests, we can win the battle without danger.

hearing coming up tomorrow
unrecorded
love and support to richard parker
constitutionalist for we the people

Forwarded conversation
Subject: interrogatories
————————

From: Charles Nesson
Date: Tue, Jun 16, 2009 at 6:18 AM
To: dcloherty

dan, will you respond to our first set of interrogatories served on you may 8, 2009, and if so when

–
——
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: Cloherty, Dan
Date: Tue, Jun 16, 2009 at 6:56 AM
To:  nesson at law.harvard.edu

The responses were served last week. When I get to the office this am I will get a copy and send it to you via e mail.

From: Charles Nesson
To: Cloherty, Dan
Sent: Tue Jun 16 06:18:22 2009
Subject: interrogatories

———-
From: Charles Nesson
Date: Tue, Jun 16, 2009 at 10:54 AM
To: “Cloherty, Dan”

got them from victoria, thanks.

———-
From: Charles Nesson
Date: Thu, Jun 18, 2009 at 8:21 AM
To: “Cloherty, Dan”

please respond immediately to our second set of interrogatories.

———-
From: Charles Nesson
Date: Thu, Jun 18, 2009 at 10:44 AM
To: “Cloherty, Dan”

dan, in light of the judge’s ruling on fair use, will you nonetheless be maintaining your objections to answering our first set of interrogatories, and making similar objections to our second set?

–
——
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.

Motion to strike

Exhibit