Harvard professor apologizes to judge for faulty motion in RIAA music piracy case

Nesson, lawyer for Joel Tenenbaum in lawsuit, says he was wrong to file deposition request

In yet another twist to a music piracy case that already has attracted lots of attention, a Harvard University law professor who is defending a Boston University graduate student accused of copyright infringement by the Recording Industry Association of America (RIAA) apologized this week to a federal judge in Boston for wasting the court's time with one of his motions.

The written apology by Harvard Law School professor Charles Nesson came on Tuesday, a week after U.S. District Judge Nancy Gertner sharply rebuked Nesson over a motion he had filed seeking to depose a person who he claimed was a representative of the record companies that filed the lawsuit.

In a March 9 order denying that motion, Gertner said Nesson had failed to establish how the person he wanted to depose was connected to the piracy case. She also criticized the manner in which a subpoena seeking the deposition had been served and noted with "displeasure" that Nesson had failed to confer with the plaintiffs' lawyer before filing the motion. In addition, Gertner expressed surprise that Nesson had gone ahead with the motion even after being alerted by the opposing counsel that there were "defects" in his subpoena.

"While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation — a client whose case may well be undermined" by such motions, Gertner wrote.

Nesson's apology acknowledged that he had made a mistake by not withdrawing the deposition motion. "I will make amends," he wrote, while saying that he would "take seriously" a warning from Gertner about imposing sanctions and financial penalties if he filed such motions again.

The case in Boston involves Joel Tenenbaum, a 25-year old doctoral student. Tenenbaum was sued in August 2007 by several music labels for allegedly downloading and distributing hundreds of songs over peer-to-peer networks, although the lawsuit lists only seven songs. The statutes under which Tenenbaum was sued allow for a maximum fine of more than $1 million if he is found guilty of willful infringement.

The lawsuit shot into the limelight last year when Nesson announced that he would represent Tenenbaum in the legal fight against the RIAA, which is representing the record companies. In October, Nesson filed a counterclaim challenging both the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act and the RIAA's attempted use of that law against Tenenbaum.

In the counterclaim, Nesson also challenged the appropriateness of the massive fines — ranging from $750 to $150,000 per act of willful infringement — that can be levied under the federal statute, which was signed into law in 1999.

In addition, he is pushing for some of the courtroom proceedings in Boston to be streamed live over the Internet in a bid to attract wider attention to the case. In January, Gertner approved Nesson's request to allow live streaming of a court hearing on his counterclaim, although that hearing — originally scheduled for Jan. 22 — has been pushed back to April 30 because the RIAA is appealing Gertner's ruling.

This week's apology to the judge by Nesson surprised Ray Beckerman, a New York-based attorney who has represented several people in music piracy lawsuits filed by the RIAA. Beckerman said he thinks that Nesson really should be apologizing to his client, not the judge.

"Please don't ask me where in the federal rules there is a provision for a notice of apology," Beckerman wrote in his blog, while exhorting lawyers on both sides in the Tenenbaum case not to practice law "from the seat of your pants."

In an interview this morning, Beckerman said that Nesson's apology was "meaningless" from a legal standpoint and that based on his understanding of the case, there was little reason for an apology in the first place. The incident points to broader issues about the manner in which the case is being handled by Nesson as well as the RIAA's attorneys, Beckerman added.

Meanwhile, the online news site P2Pnet.net pointed this week to a posting on a Web site about the Tenenbaum case that is maintained by Nesson's students, saying it appears to show some disarray in the defense camp.

"Make no mistake about it: we are a student run team," begins the posting by a student who said she was writing on behalf of Nesson. She goes on to welcome a new member to the defense team: Matthew Feinberg, a partner at Boston law firm Feinberg & Kamholtz.

However, a comment attached to the posting under Nesson's name describes the defense effort as "a faculty run team with me as Joel's lawyer, captain and supervisor of the team." The comment concludes: "delighted that matt will join us."

Nesson couldn't immediately be reached for comment today on his apology to Gertner or the postings on the "Joel fights back" Web site.

Copyright © 2009 IDG Communications, Inc.

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