The world of the Internet is moving from Wild West behavior to clarification and imposition of rules. Controversial Harvard Law School professor Charles Nesson might be learning a hard lesson about that. Nesson is associated with the high-profile influential HLS Berkman Center for the Internet & Society.
Nesson's behavior on the Internet, which could result in sanctions from a federal judge, concerns his representation of the defendant Joel Tenenbaum in "Capitol Records Inc. v. Alaujan." Not surprisingly, the litigation is about student downloading of music. The federal judge is Massachusetts District Judge Nancy Gertner.
The way Sheri Qualters reports the incident in THE NATIONAL LAW JOURNAL is:
"Charles Nesson faces possible court sanctions for an Internet posting of deposition excerpts from his defense of a college student facing copyright infringement charges for illegal Internet music downloads. ... Gertner [the judge] 'made clear' that deposition recordings were permitted but 'not to be made public via the Internet.'"
The judge demanded a response from Nesson why he or his client should not be sanctioned for Nesson's putting pieces of the deposition on HLS website for the Berkman Center.
The way Nesson describes the context is:
- He posted the material on his personal blog which the Berkman Center does not endorse or review.
- What was made public on his blog were about six minutes of the conversation between him and the plaintiffs' lawyer and a witness. The latter was another HLS professor associated with the Berkman Center. The content of that conversation demonstrated how the attorneys for the plaintiffs are attempting to limit how the attorneys affiliated with the defendants could communicate in public about the incidents on blogs as well as through Tweeter.
- The motion from the plaintiffs for sanctions "should be seen for what it is: a tactic to distract and sap the energy, and resources and reputations of those they oppose."
This has not been the only digital issue in the litigation. In April, Qualters tells us, the 1st U.S. Circuit Court of Appeals reversed the judge's order to allow webcasting of a hearing in the litigation. The reason was, says Qualters, is "the confluence of a local rule, a Judicial Conference of the United States policy and a 1st Circuit Judicial Council resolution barred gavel-to-gavel webcasting."
If Nesson or his client receive a sanction that won't be the first setback in this lawsuit. In mid-June, the judge denied the defendant's counterclaim against record companies in general and the plaintiffs. It alleged that their lawsuits represent an abuse of process.
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