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Monthly Archive for July, 2009

you be the judge

which account of today in court do you prefer:

ben sheffner or brent whelan

morning mail – honored to see my teaching take hold

From: K.A.D. Camara
Date: Thu, Jul 23, 2009 at 1:13 PM
To:, Charles Nesson


I like very much the idea of conducting this litigation publicly. I think as we go along over the next month, we should start explaining the dispositive motions arguments to the world — first sale and 117 non-infringement, nominative use of trademarks, preemption, and copyright misuse. We have the advantage of a press corps that’s already engaged and that enjoys diving into legal arguments.

I also like the circus idea. We need to make sure that our circus day doesn’t vary in any material way from how we do business ordinarily, other than that lots of people plus Apple are also roaming around the office. Our people will be asked about this in depos.

As for scheduling, we’re negotiating dates with Apple right now and should be able to pin down a final schedule in the next couple of days. As you can imagine, they’re nitpicking over who exactly we get to depose and in what order. A nice follow-up post might be the roster of Apple people being deposed — we can invite the world to send us questions.

I’m cc’ing Charlie Nesson on this, who I told about the case, who likes our side and story, and who is expert in public litigation.


On Thu, Jul 23, 2009 at 11:27 AM, Rudy Pedraza wrote:


Hope all is well. Yesterday my staff forwarded you and CeCe a link to the blog we intend to launch now with our next newsletter; when you get a chance please let me know if the content is acceptable. We particularly wanted CeCe’s input on how we presented the change of counsel but keeping it light, upbeat and funny if possible (re: Cowboy quip).
I’ve also been thinking about the upcoming visit from Apple during depo week (which in my opinion is akin to letting Terrorists visit the Pentagon). Although the idea makes me uneasy, I figure that if we let them in, we might as well have an *event* for the public the same day showcasing our products and letting customers touch and feel them first hand. How do you feel about that? The theme of the day would be something like “The circus comes to town”, with everyone knowing Apple was also coming and at the same time making the public aware of how ridiculous Apple is behaving. Of course the key to pulling this off is planning, so we would need to get the visit date nailed down ASAP to ensure we get good media coverage.

Best regards,

Fair Use + Brent Whelan – view from montparnasse

my friend brent whelan came to court this morning for our (unrecorded) hearing on summary judgment and fair use. here is his blog, followed by a memo in fern’s voice as well as mine.

Monday, July 20, 2009
Justice, Equity, Public Interest, and the MP3

Like the Moakley Federal Courthouse itself, Judge Nancy Gertner’s courtroom is an orderly, even stately place, brightly lit and impeccably arranged. The judge likes things to run smoothly. This morning, for example, several courthouse staff spent a good half-hour lining up the technology so that when the time comes to play the ‘evidence,’ a series of allegedly pirated songs, they play on cue.

The case in question pits the music recording industry, a phalanx of blue-suited lawyers and expert witnesses, consultants, and corporate executives, against Joel Tennenbaum, a twenty-something grad student who did what most other folks his age do: he ‘illegally’ downloaded hundreds of his favorite songs and–gasp!–shared them. For this ‘infringement’ the industry hopes Gertner and the jury will order him to pay hundreds of thousands of dollars in ‘damages.’ Aligned with Tennenbaum is Harvard law professor (and my good friend) Charlie Nesson, an affiliated local law firm, the Bill of Rights, and possibly, depending on how the case reaches the jury, a populist streak in the American consciousness that doesn’t like to see big corporations use the courts to push ordinary folks around. But the road to that jury hearing passes through Judge Gertner.

The Judge, who described herself from the bench as a “creative judge,” is known as something of a maverick, even a bit of a leftie, none of which was in evidence during this morning’s pre-trial maneuvers. She displayed a primary allegiance to the institution of the law, which she referred to as “these four walls,” and insisted that the case had to be trimmed to fit its dimensions. She declared her interest in keeping the various issues in “the right boxes,” which could prove an impediment to Tennenbaum’s defense. To be specific, the doctrine of “Fair Use”–what an ordinary person might think was appropriate use of song files given the available technologies and habits of file-sharing–rests at the center of Tennenbaum’s defense. But Gertner suggested she might relegate this argument not to the trial itself but to the box marked “damages.” If she does so, Tennenbaum loses the chance to prove that he is not a thief, a ‘pirate,’ but an ordinary non-commercial music listener. In effect, Gertner’s rage to order may exclude Nesson’s larger vision of what is equitable in this case.

I had a chance to hear a bit of that larger view this morning, as Nesson argued for a conception of the law as circumscribed, both theoretically and historically, by liberty. It is this elegant appeal to a higher principle–to a notion of popular sovereignty, in stark contrast to the plutocratic firepower assembled on behalf of the plaintiffs–which might well inspire a jury to see the larger interest in the case. We all have a stake in this vision of cyberspace as public space, of the internet not just as a field for online commerce, a profit center, but a public square where ideas–and yes, songs–can be freely exchanged. The recording industry and its gunslinger lawyers would like to mount Tennenbaum’s head on a pike, as a warning to the rest of us. If Gertner insists on her narrow view of the case, overruling Nesson’s visionary one, she may just let them do it.


Cyberspace is a space for sharing. People of all ages, but especially young people, love to share music. Peer-to-peer sharing technology is technology for sharing music. From the first burst of Napster into the lives of the born-digital generation the recording industry’s physical hold on its catalog of copyrighted music was gone. The music was and continues to be out in cyberspace in format sharable for free by anyone with a net connection. That was and is the effect of technological progress, not Joel Tenenbaum’s fault.

When Napster hit, the recording industry turned to its RIAA lawyers to stop the use of internet sharing technology. Napster proved vulnerable to legal targeting because its hub-and-spoke distribution architecture required a central server, and RIAA succeeded in shutting it down. But on its heels came Grokster. Advances in peer-to-peer sharing technology produced new software built on a network architecture of distributed nodes instead of hub-and-spoke(FastTrack/Gnutella). Using this technology a new company, Grokster eagerly appealed to the millions of noncommercial users who had been sharing music using Napster. RIAA failed to stop Grokster, first in the District Court in January 2003, MGM Studios, Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213 (C.D. Cal., 2003), and then again on appeal in the Ninth Circuit February 2004, MGM Studios, Inc. v. Grokster Ltd., 380 F.3d 1154(9th Cir. Cal., 2004). It was at this point that the industry started suing customers (non commercial users), beginning the litigation campaign of which the case against Joel Tenenbaum is example. The prospect of obtaining Supreme Court review and reversal of the Ninth Circuit decision allowing Grokster to stay in business seemed remote. Go after the direct infringers? What else was the industry to do?


Plaintiffs assert: “The law is clear: Defendant’s actions constitute copyright infringement.” (Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment re Defendant’s Fair Use Defense (hereafter “memo”) at 7) They cite their eventual victory in the Supreme Court in Grokster to support their position, MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

The law is not clear that Defendant’s actions constitute copyright infringement. Grokster in no way precludes Joel Tenenbaum’s fair use defense in this case. Grokster conceded that its users were infringing without contesting the issue. The fair use argument advanced here by Joel Tenenbaum was neither presented nor argued to the Supreme Court in any form. Grokster did not directly involve any noncommercial user. None were party to the case. The Grokster opinion, therefore, can have no stare decisis, res judicata or judicial estoppel effect on Joel Tenenbaum. While the opinion characterized peer-to-peer sharing as infringement, the Court did so by assumption, and with no thought of opining on the fairness of lawsuits for massive statutory damages against noncommercial music consumers like Joel Tenenbaum.

Joel Tenenbaum’s fair use defense starts from the proposition that he did nothing wrong: In no sense is he blameworthy. What he did was not unfair. It may be that, at the time, he believed he was acting illegally, but that does not mean that what he did was unfair, or that a jury could not now respond to that defense. If his conduct was fair, it was not in fact illegal, even though he may have believed it to have been illegal at the time. This is because the copyright law has fairness built right into it as the border of its reach in backing up the copyright holder’s legitimate assertion of control.

summary judgment – morning mail + motion to strike palfrey

Forwarded conversation
Subject: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”

From: William Patry
Date: Sun, Jul 19, 2009 at 9:41 PM

New comment on your post #1064 “who is the proper decisionmaker on questions of fair use — the judge or a jury”
Author : William Patry (IP: ,
E-mail :
URL : http://PatryCopyrightBlog
Whois :
I am not aware of any case holding that where there is a disputed issue of fact on fair use, a jury cannot decide the issue. The occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees). The characterization about fair use being a mixed question of law and fact, which originated I believe with the 11th circuit in one of its early Pacific & Southern v. Duncan cases, concerned only appellate review. Here is a longer discussion (footnotes omitted) of that case from the section Peter Friedman cited my from treatise (thanks Peter!)

“In Harper & Row, Publishers, Inc. v. Nation Enterprises,
the Court, citing as the only authority the Eleventh Circuit’s
opinion in Pacific & Southern Co. v. Duncan,2 stated:
Fair use is a mixed question of law and fact , Pacific &
Southern Co. v. Duncan . . . Where the district court has found
facts sufficient to evaluate each of the statutory factors, an ap-
pellate court “need not remand for further fact finding . . .
[but] may conclude as a matter of law that [the challenged
use] [does] not qualify as a fair use of the copyrighted work.”

This modest statement has, unfortunately, been grieviously ously misunderstood and, as a result, applied in unintended
ways. Pacific & Southern Co. was an appeal from a bench
trial. What motivated the Eleventh Circuit’s characteriza-
tion of fair use as a mixed question of law and fact was its
conclusion that the district court had engaged in an errone-
ous interpretation of the law by refusing to analyze fair use
under the second, third, and fourth statutory factors—rely-
ing on a mistaken judgment that a failure to make a produc-
tive use under the first fair use factor ended the fair use
inquiry.The court of appeals, noting the statute’s use of the
mandatory term “shall” in directing courts to examine all
four statutory factors, ruled the district court acted contrary
to the statute by analyzing the use only under the first
factor . The court of appeals nevertheless affirmed the
district court’s rejection of fair use because as a result of the
bench trial, the district court had already found the facts,
and the court of appeals needed only to apply the correct
legal standard. Pacific & Southern thus involved a run-of-
the-mill legal problem: the court of appeals, interpreting a
statute, held that “shall” means “must,” and thus found legal
error in the trial court’s refusal to evaluate the use under all
four factors as commanded by Congress. But as all fact finding had occurred, there was no need for a remand.
Harper & Row’s statement, citing Pacific & Southern that
fair use is a mixed question of law and fact, should therefore
be applied solely to appellate review of erroneous applica-
tions of law. Where the district court has correctly applied
the relevant law, or a jury has decided the issue under proper
instructions, the standard of review is the clearly erroneous
standard. Any other approach would be inconsistent with
the right to a jury to decide fair use, a right recognized by all
circuits, including the Eleventh.

You can see all comments on this post here:

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From: Charles Nesson
Date: Sun, Jul 19, 2009 at 9:45 PM

thanks. glad to have such well-grounded support

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: William Patry
Date: Mon, Jul 20, 2009 at 7:29 AM

Hi Professor Nesson, thanks for having such an open forum. By the way, I have a new book coming out in about three weeks (the date is off) I think will interest you (you are quoted on page 29 for your “urban legend” remarks in the Tenenbaum case).

It’s called “Moral Panics and the Copyright Wars”. Here’s the link:

The book is about how language and power have been misused to perpetuate bad business models. I am happy to send you electonic files if you like. I am giving a talk on it October 9th at the Harvard Bookstore 3 pm Friday Forum.

Best regards
Bill Patry

— On Sun, 7/19/09, Charles Nesson wrote:

From: Charles Nesson
Subject: Fwd: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”
Date: Sunday, July 19, 2009, 9:45 PM

From: Charles Nesson
Date: Mon, Jul 20, 2009 at 7:36 AM
To: William Patry
Cc: William Fisher

thanks. terry fisher sent me some of the proofs that he thought relevant to the issue, left it to me to decide whether i needed your permission to use them.

Defendant has designated John Palfrey as an expert witness to provide testimony
concerning children’s understanding of the concept of “fair use” under copyright law, how
children should be educated regarding fair use, and an explanation of the behavior of so-called
“digital natives” regarding creativity and copyrights. [snip] this testimony
has no conceivable relevance to any claim or defense in this case and, therefore, must be

mmm, what conceivable relevance could how children learn about what they must not do on a computer be to the fairness of punishing a child to teach a lesson

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.

who is the proper decisionmaker on questions of fair use — the judge or a jury

judge gertner has posed a question that cuts deep to the foundations of law and copyright. she is asking for help on it, to be argued before her this coming monday. i am posting her order here to my blog to invite your analysis and comment


morning mail from my kids

from becca

i heard on npr news this morning a little piece of info about naacp launching a program in new york that allows people to report police misconduct by uploading photos or video taken on their cell phones of their
interaction with the cops. thought you might be interested…

from wayne

some interesting evidence re: the idea that if joel wanted to listen to those songs today, he’d use something like youtube rather than kazaa

also, btw, since we were talking about it, here’s my favorite eulogy for oink

hello justice roberts – internet calling justice roberts

Mr. Justice Stephen Breyer
c/o Clerk of Court
Supreme Court of the United States
Washington, D.C. 20543

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


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

joel tenenbaum’s deposition

joel tenenbaum.JPG

joel tenenbaum at the conclusion of his deposition
charlie nesson don’t know quite when, in p-town, heading out to alchemy

issue goes deep. conflict between law in federal court and law in the court of public opinion. they should be the same. the idea that the goal of making this case a focal point for national attention and debate on issues central to our thought and future with respect to copyright and the exclusive rights of copyholders in the environment of the net should not be at odds with the process of trial by jury, with media connection stifled to facilitate obtaining an unbiased jury.

We are here to defend fair sharing, peer to peer, and to create recognition of the right to create cyberspace by digitally recording it.

gobblygook- and i didn’t paste in all of it – “SECRET” – not “UNCONSENTED”: “ferae naturae”

is there a right to create bits in cyberspace? is there a right to capture the value of them from the public domain?

September 1960. i enter harvard law school. my first class is PROPERTY, taught by W. Barton Leach. the first case in my property casebook deals with ferae naturae, wild animals, unowned things of value in the public domain. the case name is Pierson v. Post. the setting (loosely) is a long and empty public beach in front of a crusty dutchman’s house who is sitting on his porch looking out at the beach in front of him with a rifle on his knee, that’s Pierson; and Post, an english squire type who likes to hunt foxes with a pack of dogs. On the day of the event in question Post and his dogs succeed in flushing a fox and chasing it out onto the beach. They are in hot pursuit coming down the beach in front of Pierson’s porch, fox, dogs and Post on horse galloping behind. Pierson raises his rifle and shoots the fox dead. who owns the fox?

i make no “secret” that i record. my default is red light on. whether i have my red light on is no business of the state. whether those with whom i come in contact consent to be in the environment i am in or whether they insist on theirs seems not the or not is between them and me, not the stuff of five year felony

the massachusetts statute purporting to make it a five year felony to digitally record my environment if any one in it objects, with requirement that i must announce to each new identity coming into the environment i am recording that i am laying down digital track = bullshit!. the massachusetts statute is gobblygook. the federal courts of the united states of america have no reason to waste their time with it unless they find it impeding their freedom to administer and project federal law. the idea that the federal court and a federal judge would become the instruments of its enforcement misconceives the proper balance of power and responsibility between state and federal governments in service of their constitutions and their citizens bill of rights. this law has been used to prosecute a kid with long hair driving his car, music player and recorder beside him on the seat, pulled over by police (for his long hair?), who activates the recorder beside him on the seat so that all of what follows is evidence. the cops hassle him in a manner he finds deeply offensive, then let him go. he goes to the police station and complains to the captain about abuse. he tells the captain he has recorded evidence of it. the captain notifies the prosecutor, who prosecutes this kid for violation of this gobblygook statute. the case is tried to a jury. the judge tells the jury that it must ignore all that the police did and said. he gives a fearsome anti-nullification charge that the jurors must obey their oath to apply the letter of the law. the kid is convicted, of a felony with a five year sentence, don’t know if he actually did time. my friend steve elliot told me all about this when i was last in truro. he’s a country lawyer who was in the abington massachusetts courtroom when judge nagle made it happen. steve eliot, father of justin elliot, news editor at TPM, google him, he comes right up. AFFIRMED by the SJC. bullshit!

not “unconsented”


Massachusetts General Law ch. 272, section 99 (2009)

section 99. Eavesdropping, Wire Tapping, and Other Interception of Communications.

Interception of wire and oral communications.–

A. Preamble.

The general court finds that organized crime exists within the commonwealth and that the increasing activities of organized crime constitute a grave danger to the public welfare and safety. Organized crime, as it exists in the commonwealth today, consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services. In supplying these goods and services organized crime commits unlawful acts and employs brutal and violent tactics. Organized crime is infiltrating legitimate business activities and depriving honest businessmen of the right to make a living.

The general court further finds that because organized crime carries on its activities through layers of insulation and behind a wall of secrecy, government has been unsuccessful in curtailing and eliminating it. Normal investigative procedures are not effective in the investigation of illegal acts committed by organized crime. Therefore, law enforcement officials must be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities.

The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.

B. Definitions. As used in this section–

1. The term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

5. The term “contents”, when used with respect to any wire or oral communication, means any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.

6. The term “aggrieved person” means any individual who was a party to an intercepted wire or oral communication or who was named in the warrant authorizing the interception, or who would otherwise have standing to complain that his personal or property interest or privacy was invaded in the course of an interception.

7. The term “designated offense” shall include the following offenses in connection with organized crime as defined in the preamble: arson, assault and battery with a dangerous weapon, extortion, bribery, burglary, embezzlement, forgery, gaming in violation of section seventeen of chapter two hundred and seventy-one of the general laws, intimidation of a witness or juror, kidnapping, larceny, lending of money or things of value in violation of the general laws, mayhem, murder, any offense involving the possession or sale of a narcotic or harmful drug, perjury, prostitution, robbery, subornation of perjury, any violation of this section, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.

8. The term “investigative or law enforcement officer” means any officer of the United States, a state or a political subdivision of a state, who is empowered by law to conduct investigations of, or to make arrests for, the designated offenses, and any attorney authorized by law to participate in the prosecution of such offenses.

9. The term “judge of competent jurisdiction” means any justice of the superior court of the commonwealth.

10. The term “chief justice” means the chief justice of the superior court of the commonwealth.

11. The term “issuing judge” means any justice of the superior court who shall issue a warrant as provided herein or in the event of his disability or unavailability any other judge of competent jurisdiction designated by the chief justice.

12. The term “communication common carrier” means any person engaged as a common carrier in providing or operating wire communication facilities.

13. The term “person” means any individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent or employee of the United States, a state, or a political subdivision of a state.

14. The terms “sworn” or “under oath” as they appear in this section shall mean an oath or affirmation or a statement subscribed to under the pains and penalties of perjury.

15. The terms “applicant attorney general” or “applicant district attorney” shall mean the attorney general of the commonwealth or a district attorney of the commonwealth who has made application for a warrant pursuant to this section.

16. The term “exigent circumstances” shall mean the showing of special facts to the issuing judge as to the nature of the investigation for which a warrant is sought pursuant to this section which require secrecy in order to obtain the information desired from the interception sought to be authorized.

17. The term “financial institution” shall mean a bank, as defined in section 1 of chapter 167, and an investment bank, securities broker, securities dealer, investment adviser, mutual fund, investment company or securities custodian as defined in section 1.165-12(c)(1) of the United States Treasury regulations.

18. The term “corporate and institutional trading partners” shall mean financial institutions and general business entities and corporations which engage in the business of cash and asset management, asset management directed to custody operations, securities trading, and wholesale capital markets including foreign exchange, securities lending, and the purchase, sale or exchange of securities, options, futures, swaps, derivatives, repurchase agreements and other similar financial instruments with such financial institution.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who–

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph.

2. Editing of tape recordings in judicial proceeding prohibited.

Except as otherwise specifically provided in this section any person who willfully edits, alters or tampers with any tape, transcription or recording of oral or wire communications by any means, or attempts to edit, alter or tamper with any tape, transcription or recording of oral or wire communications by any means with the intent to present in any judicial proceeding or proceeding under oath, or who presents such recording or permits such recording to be presented in any judicial proceeding or proceeding under oath, without fully indicating the nature of the changes made in the original state of the recording, shall be fined not more than ten thousand dollars or imprisoned in the state prison for not more than five years or imprisoned in a jail or house of correction for not more than two years or both so fined and given one such imprisonment.

3. Disclosure or use of wire or oral communications prohibited.

Except as otherwise specifically provided in this section any person who–

a. willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or

b. willfully uses or attempts to use the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

4. Disclosure of contents of applications, warrants, renewals, and returns prohibited.

Except as otherwise specifically provided in this section any person who–

willfully discloses to any person, any information concerning or contained in, the application for, the granting or denial of orders for interception, renewals, notice or return on an ex parte order granted pursuant to this section, or the contents of any document, tape, or recording kept in accordance with paragraph N, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

5. Possession of interception devices prohibited.

A person who possesses any intercepting device under circumstances evincing an intent to commit an interception not permitted or authorized by this section, or a person who permits an intercepting device to be used or employed for an interception not permitted or authorized by this section, or a person who possesses an intercepting device knowing that the same is intended to be used to commit an interception not permitted or authorized by this section, shall be guilty of a misdemeanor punishable by imprisonment in a jail or house of correction for not more than two years or by a fine of not more than five thousand dollars or both.

The installation of any such intercepting device by such person or with his permission or at his direction shall be prima facie evidence of possession as required by this subparagraph.

6. Any person who permits or on behalf of any other person commits or attempts to commit, or any person who participates in a conspiracy to commit or to attempt to commit, or any accessory to a person who commits a violation of subparagraphs 1 through 5 of paragraph C of this section shall be punished in the same manner as is provided for the respective offenses as described in subparagraphs 1 through 5 of paragraph C.

D. Exemptions.

1. Permitted interception of wire or oral communications.

It shall not be a violation of this section–

a. for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of such communication, or which is necessary to prevent the use of such facilities in violation of section fourteen A of chapter two hundred and sixty-nine of the general laws; provided, that said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

b. for persons to possess an office intercommunication system which is used in the ordinary course of their business or to use such office intercommunication system in the ordinary course of their business.

c. for investigative and law enforcement officers of the United States of America to violate the provisions of this section if acting pursuant to authority of the laws of the United States and within the scope of their authority.

d. for any person duly authorized to make specified interceptions by a warrant issued pursuant to this section.

e. for investigative or law enforcement officers to violate the provisions of this section for the purposes of ensuring the safety of any law enforcement officer or agent thereof who is acting in an undercover capacity, or as a witness for the commonwealth; provided, however, that any such interception which is not otherwise permitted by this section shall be deemed unlawful for purposes of paragraph P.

f. for a financial institution to record telephone communications with its corporate or institutional trading partners in the ordinary course of its business; provided, however, that such financial institution shall establish and maintain a procedure to provide semi-annual written notice to its corporate and institutional trading partners that telephone communications over designated lines will be recorded.

2. Permitted disclosure and use of intercepted wire or oral communications.

a. Any investigative or law enforcement officer, who, by any means authorized by this section, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence in the proper performance of his official duties.

b. Any investigative or law enforcement officer, who, by any means authorized by this section has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents or evidence in the proper performance of his official duties.

c. Any person who has obtained, by any means authorized by this section, knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any federal or state grand jury proceeding.

d. The contents of any wire or oral communication intercepted pursuant to a warrant in accordance with the provisions of this section, or evidence derived therefrom, may otherwise be disclosed only upon a showing of good cause before a judge of competent jurisdiction.

e. No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this section shall lose its privileged character.

peer to peer sharing the essence of the open net

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:
I hope it helps in some way.

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