Archive for the 'american jury' Category

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peer to peer sharing the essence of the open net

Published by nesson on July 8, 2009 in american jury, rhetorical space, RIAA and Uncategorized. Closed

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

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

wired summarizes riaa accusations

Published by nesson on July 7, 2009 in american jury and RIAA. 1 Comment

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.

We used XMeeting, which is open source Internet videoconferencing software for MAC that enables audio-visual exchange and recording. I recorded the deposition using Xmeeting’s built-in functionality. 9 gigabits for the six hours of interrogation the first day. Not sure what i managed to save from the three hours of interrogation on the second day.

Plaintiffs are mistaken when they assert in their brief that the recording of the Palfrey deposition was posted “on both [my] internet blog and the Berkman Center’s website”. The URL to which they direct the court, http://cyber.law.harvard.edu/~nesson/, is webspace I use for file storage that is neither reviewed nor endorsed by the Berkman Center; the files therein are unlinked to by any Berkman Center website. The same is true of my blog at http://blogs.law.harvard.edu/nesson, a website hosted by, but not curated, reviewed, or endorsed by the Berkman Center.

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.

songs as shared things

Published by nesson on July 2, 2009 in american jury, lessig, liberty and RIAA. Closed

wayne\'s tweets

no ruling yet on whether wayne will be allowed to testify

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

FRE 102 – petition to judge souter

Published by nesson on June 29, 2009 in american jury. Closed

law_lord

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

evidence

Published by nesson on June 28, 2009 in american jury. 6 Comments

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.

» radiohead – has a certain pace to it > eon >> gone

Published by nesson on March 22, 2009 in american jury, rhetorical space, RIAA and Uncategorized. Closed

Forwarded conversation
Subject: radiohead
————————

From: Charles Nesson
Date: Fri, Mar 20, 2009 at 10:06 AM
To: Isaac Meister , Matthew Sanchez , Anna Volftsun , Debbie Rosenbaum

would each of you please write me an account of our meeting with brian message
my recorder malfunctioned

———-
From: Anna Volftsun
Date: Fri, Mar 20, 2009 at 10:53 AM
To: nesson@law.harvard.edu

Professor Nesson,

I dont remember the exact details, but the gist of it was:
He talked about how the UK is moving towards an alternate model of music distribution (from BPI, which is their version of the RIAA). This model does not involve record labels at all and encourages, or at least allows, file-sharing. He mentioned working with an artists organization of about 200 groups. The UK is currently soliciting reactions and opinions on its proposal to amend the copyright laws. The matter was put to a vote in the artists organization and they almost unanimously voted to allow file-sharing rather than have it be penalized by copyright law.

—

terry fisher for copyright czar

Published by nesson on January 9, 2009 in american jury and berkmania. Closed Tags: berkman, gertner, joel, RIAA, tenenbaum, terry.

his appointment to follow an interim period during which judge nancy gertner presides over a trial between riaa and joel

joel has the net in back of him
like the verizon commercial

http://digg.com/tech_news/Students_law_prof_want_RIAA_trial_live_and_online?OTC-ig

during the interim period a trial unfolds within the structure of the federal rules presided over by a federal judge

all of the emnities of the past imposed by riaa’s abuse of music lovers and computer users are brought to the surface of our national consciousness and resolved.

the trial process itself is understood and represented as civic education

we the people conceptually instantiated

our love for creative artists expressed

terry fisher for copy-law czar, founder of i-law

building on john palfrey’s task force report to Attorneys General

zittrain to show kids the way tol digital empowerment

berkman center to underwrite bringing joel’s case to the open net

merry christmas to the net

Published by nesson on December 24, 2008 in american jury, berkmania, beyondbroadcast, obama, rhetorical space, RIAA and Uncategorized. 1 Comment Tags: cary sherman, RIAA, tenenbaum.

To: Cary Sherman

hi cary,

thanks for your note. i don’t really understand why you are continuing the litigation, but if that’s your position then i ask you to agree to our motion, just filed, to admit internet to the courtroom, and then to join with me in making the trial the best possible example of civil discourse within the rules of federal civil procedure.

happy holidaze
best to you and family from me and fern

listen

now we will see copy-right’s real strategy

Published by nesson on December 19, 2008 in american jury, berkmania, liberty, poker, rhetorical space, RIAA and university. Closed Tags: RIAA, tenenbaum, university.

From: Joel Tenenbaum
Date: Fri, Dec 19, 2008 at 8:52 AM
Subject: [cyberone-riaa] [Fwd: riaa]

Interesting…

“Indeed, many in the music industry felt the lawsuits had outlived their
usefulness.”

game of gotcha

Published by nesson on December 4, 2008 in american jury, berkmania, beyondbroadcast, liberty, marijuana, obama, poker, rhetorical space, RIAA and the wire. Closed

Power plays by the rules only when it suits its purpose
Now the court in Oregon is realizing it has some
Including the power to put their reality back in the face of authority
Power we think comes from on top
Power comes from within

Here’s an article in the new york times about Breyer listening and hearing what the Oregon judges are saying, speaking in their lawyer’s language about instructions to the jury, and Souter asking core questions.

Massachusetts, New Hampshire, Oregon
gotta love it

adam liptak

and then Roberts batting clean-up
where’s he from
home run

“Is there a way for us to ensure against a bad-faith response to our decision?”
Justice Souter asked. Chief Justice Roberts had an answer. Get to the issue at the core so that our decision earns respect. The Supreme Court has no troops to enforce its judgments on lower courts. Supreme Court authority is respect for law, which starts with judges understanding the true source of their power.

where is a transcript of this magnificent exchange
where is the audio/video
why do i not have this to teach to my class

today’s a busy day
here’s from matt:

Charlie,

I have class from 10am-12:45pm. Other than that I am available.

As a rough note to get things started, here is a (probably non-exhaustive) list of things we need to produce/discuss:

1. Request for leave to file reply to plaintiffs’ opposition to our amended counterclaim (ASAP!)
2. Request for leave to file reply to plaintiffs’ opposition to our motion to add RIAA (ASAP!)
3. Request for leave to file reply to plaintiffs’ opposition to our discovery plan (if we chose to do so, and if that is even possible… ASAP!)
4. Produce all three of those documents
5. Figure out what to do if we want to appeal the order against Tova to the 3rd Circuit (if we choose to do so)
6. Figure out how to comply with plaintiffs’ proposed discovery plan, because I think Judge Gertner probably will either adopt their plan or a modified version (provided we don’t/cant reply)
7. Figure out how to prepare all of the discovery stuff we’ll need to do soon anyway (esp. preparing expert reports on our experts)
8. How we’re going to handle the hearing in RI, including whether we’re going to request electronic recording
9. Finalize plans for our motion to allow electronic recording of the D.Mass proceedings
10. Decide how to distribute/coordinate all of this stuff with finals/Xmas break looming

~Matt

from shubham
-For the reply brief on the amended counterclaim (item 1 above):
A. Argue that the court does in fact have inherent federal authority to allow redress for abuse of process.
B. Argue that our state law abuse of process pleadings are sufficient to continue to trial
C. Argue that the first amendment cannot justify their litigation campaign
D. Unconstitutional delegation argument
E. Civil v. Criminal argument
F. Unconstitutional excessive damages argument

from doc searls

Another example of RIAA heartlessness:

legal_blog_watch/2008/12/callous-lawsuit-of-the-day.html

Cheers,

Doc

joel fights back