CyberOne: Law in the Court of Public Opinion

CyberOne course assistant Isaac Meister had this to say about today’s motion hearing in Rhode Island.

Four of us — Joel, Charlie, Matt, and I — drove down to Providence this morning. We were told there would be a hearing on a pending motion by the Plaintiffs to force Judie Tenenbaum to surrender her home computer for it to be imaged. The hearing itself was a rescheduling from the previous December 1 hearing date, a date which the Plaintiffs never told us about.

We found navigating Providence challenging, but eventually found an overpriced lot to park our rental car. At the main courthouse building, we were rebuffed: our hearing would take place in Courtroom A, a room above the post office adjacent. Opposing counsel greeted us warmly and made a point of greeting by name and shaking the hand of every U.S. marshal we passed on our way through security.

Outside the courtroom Joel’s mother Judie, with cookies in tow, and our local counsel, arranged over the weekend, were waiting for us. It was a personal favor: Attorney Miller’s daughter is a friend of Joel’s sister back in Pittsburgh. It had been a while since he had been in federal court, he told us, having last appeared on behalf of asbestos victims in the early 1980s, but he took it very much in stride. A handsome, dignified woman with a notebook and eyeglasses eyed us expectantly, introduced herself as a reporter for the Providence Journal. Joel and Judie were happy to supply background in the lobby as the lawyering contingent moved inside.

As we entered the courtroom the first thing I saw was Judge Almond’s clerk talking excitedly with Mr. Miller, concerned with paperwork. Apparently a re-registration program for the federal Rhode Island District in 2006 had not contacted Mr. Miller, leaving his eligibility to appear in court in doubt. Charlie was to have sought leave to appear pro hac vice for Arthur and Judie, and also to be able to speak on Joel’s behalf, but with our sponsoring attorney’s credentials under fire, it was anyone’s guess as to what Judge Almond would decide.

It turned out that Judge Almond’s standing as a Magistrate Judge made the motion hearing into an exercise in bureaucracy. Judge Almond was stuck in the position of functionary, unable to use the judicial power delegated to him on matters that hadn’t been pre-approved by his colleague Judge Torres. The only issue he was deputized to review was this motion to compel by the Plaintiffs. Deciding the standing of the attorneys before him was outside his ken.

But in order to hold a productive hearing, there must be two represented parties to argue the merits. Mr. Miller’s lack of affirmative re-registration for the federal bar — and it’s worth noting that admission to the federal bar is, at the end of the day, just a courtesy to the state bar — made him ineligible to appear. Charlie, an out-of-stater, had no standing. And so, despite having two lawyers advising her, Judie Tenenbaum was told that properly, she was appearing pro se.

Plaintiffs’ counsel was in a similar situation. Daniel J. Cloherty, local counsel to the Plaintiffs in Boston, had submitted what he thought was the correct documentation to the local clerk’s office, but the papers somehow never made it to Judge Almond. So with four lawyers before the court, only one of them had standing to argue.

No one seemed more frustrated about the situation than Judge Almond. He explained the situation, slumped over to his left, and tossed through the papers the clerk stuck on his dais. But he did turn his scrutiny to the brief before him and noted that this “emergency motion” was now anything but.

All there was to do was set a new time to meet when everyone could confidently state the basis for their standing, and who they were representing. Charlie wanted to appear for Arthur and Judie’s defense — since this little hearing is just one trailing tentacle in the litigation octopus attacking Joel — but also on Joel’s behalf. Another knot through which to work.

The logistical snafu clearly amounted to a victory for Joel and Judie, it became clear. While Judge Almond thought it “possible” that Judie’s failure to oppose the subpoena in the courts immediately might have robbed her of grounds for objection, he emphasized that she needed the opportunity to be heard. And so, in a manner suggesting mechanics more than conviction, local counsel for the plaintiffs made an oral motion requesting that the computer “be preserved”.

Charlie — who, under the fiction of the law, let’s remember, has no standing — ripped him apart. The imputation that the Tenenbaums would choose now of all times to attempt to destroy or damage the computer he found insulting; the fact that “preserving” the contents of a hard drive means the computer cannot be used, the definition of burdensome. And Judge Almond agreed, asking, again, why now?

There was nothing more to do, and we left. It wasn’t quite the show of a full-on motion hearing on the merits of forcing Joel’s parents to give their computer to strangers for inspection, but it was an instructive look at the judicial process choking on its own paperwork.

We have said from the very start that Joel is just one of many people who have been thrown into the RIAA litigation machine. In October 2007, Jammie Thomas was found guilty on 24 counts of copyright infringement by a federal jury in Duluth, Minnesota. She was ordered to pay $224,000 in damages. But in September of this year, the presiding judge set aside the verdict and declared a mistrial.

It has recently come to our attention by way of Jammie’s counsel that a motion for a new trial (or alternatively, for remittitur) has been filed with the court. What’s significant — and heartening — is their argument.

Defendant’s singular grounds for the relief sought is that the amount of the
award is excessive and in violation of the Due Process Clause of the United States
Constitution.

You can read the text of the motion here.

We are not the only ones who now realize that the verdicts from these cases threaten fundamental rights guaranteed to all citizens under our Constitution.

Prof. Nesson and the CyberOne litigation team have had the good fortune to be connected with someone who knows about the flawed methodology and ‘creative accounting’ the RIAA uses to calculate damages: Andrew Grant, a former employee of Macrovision, one of the most prominent DRM companies in the field today. Here’s what he had to say:

———- Forwarded message ———-
From: Andrew Grant
Date: Mon, Nov 10, 2008 at 12:58 PM
Subject: Re: Greetings and Thanks
To: Charles Nesson , Andrew Grant , Nnamdi Okike , Shubham
Mukherjee , Matthew Sanchez , Dmitriy Tishyevich , Isaac Kriegman

Thank you, Professor Nesson.

All, please let me know how I might be of assistance. Prior to moving back
to Boston last year, I was part of the global studio anit-piracy group at
Macrovision (MVSN). While at MVSN, I ran sales and strategy for the core p2p
antipiracy product. While they may be now in some need of revision, the
models we built and used to measure secondary propogation of our “spoofs” on
the major p2p networks might be of some use in your efforts to quantify
damages in the Tennenbaum case. In addition, I remain in contact with the
digital anti-piracy leads at most of the major Hollywood studios and would
be happy to seek their opinion on any questions that come up.

Unfortunately, I don’t have the depth of contacts in the music industry.
That business was already busted by the time I got to Macrovision.

Best,

Andrew

On 11/6/08 10:27 AM, Charles Nesson wrote:

andrew, let me introduce you to our cyberone riaa group.

we would like to work with you and you with us in dealing with riaa’s expert
and in establishing the amount of actual damage. my students will be in
touch with you. thanks.

On Wed, Nov 5, 2008 at 12:58 PM, Andrew Grant wrote:

Professor Nesson,

I thought I reach out to you on this fine, fine American afternoon to thank
you for sharing your wisdom in Harry Lewis’ class on Monday evening. When I
was at Macrovision, the DMCA did effectively pay my rent. But it was through
my work with Macrovision, and with people like Richard Atkinson of Disney
and Mitch Singer at Sony Pictures, that I started to complexity of
interaction between policy, technology, copyright and commerce in the world
of digital media.

When I moved backed to Boston last year after leaving Macrovision and the
west coast, I feared that my focus on these interactions would dull. I was
so happy to discover the Berkman Center when I started in Prof Lewis’ class
this fall.

Before I end this email, I’d like to make you a serious offer. I know you
have every available resource at your disposal, but if there is any way I
can be of service in your defense of Joel Tennenbaum, please let me know. My
contacts are more in the anti-piracy realm of the MPAA and the studios, but
I would be happy to contact them if there is anything you need.
(Particularly if you end up having to quantify the cost of infraction on an
open P2P exchange – I built models around this very issue when I was at
MVSN.)

And if you have any essential reading in this realm to recommend, I would
appreciate it.

My best,

Andrew

As a PS, I saw on your blog that you are having lunch with Yochai Benkler
today. Probably now, in fact. I just started his book, mind wide open.

Matt Sanchez from the RIAA group explains why we’re moving to quash the subpoena against Joel’s sister, and how it fits into the broader pattern of using civil process to victimize Joel.

[kml_flashembed movie="http://youtube.com/v/EoC2nlgfWV8" width="425" height="350" wmode="transparent" /]

Thoughts on the deposition:

The story of the deposition really began the previous day at the status hearing. The hearing was a success for us: the judge set an early trial date of December 1 against the wishes of Plaintiffs’ counsel. After the hearing, Plaintiff’s supervising attorney informed Prof. Nesson that he could only bring 2 students along with him to the deposition because they could not find a conference room large enough to accommodate more. She said it was absolutely impossible to get a larger room. I mentioned that the students won’t mind squeezing a bit, but she said “no, we can’t crowd the court reporter.” Notably, Plaintiffs’ deposition team would include 3, and at times 4, attorneys; apparently they were unwilling to afford Joel the same-sized team. In any event, Prof. Nesson and Plaintiff’s supervising attorney engaged in back and forth about this, until Prof. Nesson stated quite matter-of-factly “We are bringing 3.”

As a side note, Joel asked on the day of the hearing whether he needed to dress in a particular way for the deposition. Prof. Nesson said that ordinary clothes would be fine. Joel decided then and there that he would wear a Boston Red Sox t-shirt. It was meant to be his own small dig at Plaintiffs’ counsel: they were from Denver, and Joel was thinking about the Red Sox defeat over the Rockies in a recent World Series.

Our team met briefly the morning of the deposition. As promised, Joel was in his red sox t-shirt. Prof. Nesson’s chief advise to Joel was to be a “warrior:” You have your story, and you calmly and coolly state that story; you stay calm and focused at all times; you do not let them antagonize you or rush you or take you off your rhythm; you answer their questions with as few words as possible and by telling your story; nothing more; nothing less.

We arrived at local-counsel’s law offices and were shown to the conference room. I was expecting something small and cramped. The conference room was large enough to comfortably fit over a dozen people. The plaintiffs’ lawyers at the deposition were: the case’s supervising attorney; a junior attorney; and plaintiffs’ in-house counsel.

The supervising attorney took the deposition. Joel was apparently trying to really get into his “warrior” persona – he put on sun-glasses, maybe to keep them from seeing the whites of his eyes? She immediately began by asking Joel a litany of questions about how Prof. Nesson became involved in the case. For each question, Prof. Nesson asserted attorney-client privilege. This happened for about a dozen questions; each time, plaintiffs asked Joel a question, he said “I’ve been instructed not to answer,” plaintiff asked Prof. Nesson if he was instructing Joel not to answer, and Prof. Nesson said “yes.” It was all quite repetitive, until Plaintiffs began asking about whether Joel reviewed documents with Prof. Nesson. Unsuprisingly, Prof. Nesson asserted privilege. In-house counsel asked to go off the record.

The in-house counsel stated that the questions they were asking were completely ordinary and routine, they are not subject to privilege, and he has never been in a deposition where privilege was asserted. He explained that the contents of the documents may be privileged, but not a description of the nature of the documents; parties are required to produce “privilege logs” all the time. He then implied that Prof. Nesson was out of touch with current legal practice because he was a professor and doesn’t take many depositions these days. Prof. Nesson responded by commenting on the bullying nature of the litigation: the record companies are inappropriately using bullying tactics against the public in general, and have been unnecessarily harsh in their dealings with Joel in particular. The in-house counsel replied by saying that he has quite different views on the matter: many people get laid-off every year because of lost sales due to file-sharing and that is who he was fighting for. With regards to Joel’s case, he stated that Plaintiffs have been extremely generous with him and have afforded him many courtesies because he was pro se. He noted that Joel was the one being unduly harsh when he filed two separate motions for sanctions. As evidence of Joel’s supposed disrespect, he pointed out: “Here is a kid who shows up in our office wearing a Red Sox T-shirt and sun glasses!” The decision was made to save that conversation for another day and continue the deposition.

Eventually, the line of questioning went towards inquiries about other people who used or may have used Joel’s Kazaa account on the family computer. One by one, Joel listed off family and friends who used the computer over the years and explained why he thinks they may have used Kazaa (e.g., “they are music fans;” “they burn CDs;” “they download things”). The questioning for each such person took about 15 minutes or more. After 4 of these iterations, I had to leave to get to my clinical. I’m very curious about what else happened and how the deposition ended.