Joel Tenenbaum is a 25-year-old graduate student at Boston University. The music industry caught him illegally sharing songs online. Through counsel, he has tacitly admitted as much, conceding his use of Kazaa, and is focusing his defense instead on arguments that the copyright scheme is, essentially, unconstitutionally punitive. My colleague, Tom Sydnor, recently addressed some of these constitutional arguments in his historical examination of statutory damages in copyright cases. The blog Copyrights & Campaigns has covered the Tenenbaum case exhaustively.
Tenenbaum is represented by Harvard Law School Professor Charles Nesson, whose conduct as counsel has been bizarre. He has surreptitiously recorded and made public conversations with opposing counsel, his own consultants/experts, and even his own wife. One might argue that some of this -- particularly disclosure of the consultant/expert recordings that are both against his client's interest and may otherwise be protected from disclosure as attorney work product -- is in violation of certain ethical obligations Nesson has under Massachusetts' ethics laws. The most complete litany of Nesson's odd litigation behavior is chronicled here. I would prefer, however, to leave it to Tenenbaum himself to determine the effectiveness of counsel and to avoid slinging unnecessary ethical accusations here.
What this blog post focuses on instead, are the wiretapping-related motions in the Tenenbaum case. Nesson may have violated the federal court's rules of conduct, and even if not, his position about the scope of federal wiretap laws is alarming.
On June 23, 2009, Tenenbaum filed a motion (that I will call "the MediaSentry motion") that argued that the plaintiffs, through their agent MediaSentry, violated federal and state wiretapping laws in connection with their fact-gathering in the case. Put differently, Tenenbaum argues (with Nesson as his lawyer) that the recording industry's gathering of information about Tenenbaum's uploads and downloads is unlawful wiretapping. Next, on July 6, 2009, the plaintiffs in the Tenenbaum case themselves filed a motion (that I will call "the sanctions motion") argued that Nesson may have violated such laws as a result of his odd (and counterproductive) habit of recording things, as noted above. (The district court has already ordered Nesson to show cause why his recording was lawful in light of the judge's orders that he cease recording; his response is due on July 9.) Both motions rely in part on the fact that Massachusetts law requires that all parties to a communication consent to the recording of it. Mass. Gen. Laws ch. 272, s 99(B)(4) (defining "interception" as to "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") (emphasis added).
This lengthy exposition of Tenenbaum background is necessary first because Nesson appears to be playing fast and loose with the district court, in violation of his obligations under the Federal Rules of Civil Procedure. Second, Nesson grotesquely misconstrues the statutes at issue in ways that -- if adopted -- would have lasting repercussions well outside the bounds of copyright litigation.
Nesson's public statements in defense of his own conduct are completely at odds with the legal representations he made in the MediaSentry motion. More specifically, Nesson recently told Wired Magazine that he was "unaware" that recording a conversation in Massachusetts requires the consent of all parties: "I have to say I was completely unaware of this Massachusetts law. When I dug into this thing, I am amazed to what it purports to be." Yet only two weeks before, he relied upon the very same statute to which he professed ignorance. In the MediaSentry motion, he wrote: "And unlike the federal statute, the Massachusetts statute requires both parties' consent, not merely one party's consent, before recording is exempted fro [sic] the statute." MediaSentry Motion at 15.
To the extent that Nesson claims, in response to the sanctions motion, ignorance of the Massachusetts statute, he admits that he did not review the MediaSentry motion of which he was undersigned counsel. Notably, he is the only attorney who signed that brief who is actually admitted to practice in the Massachusetts federal district court. The Federal Rules of Civil Procedure, which govern practice in the federal district court explain:
"By presenting to the court a . . . written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of that person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." Fed. R. Civ. P. 11(b)(2) (emphasis added).
That Nesson did not know, two scant weeks later, about the scope of Massachusetts law, suggests that he did not read the MediaSentry motion he signed, i.e., he did not engage in any reasonable inquiry, in violation of Rule 11. The Supreme Court (in another copyright case, coincidentally) held that this duty is non-delegable:
"The signing attorney cannot leave it to some trusted subordinate, or to one of his partners, to satisfy himself that the filed paper is factually and legally responsible; by signing he represents not merely the fact that it is so, but also the fact that he personally has applied his own judgment. . . . [T]he text establishes a duty that cannot be delegated . . . ."
Pavelic & LeFlore v. Marvel Entertainment Group,
493 U.S. 120, 125 (1989). Nesson cannot, therefore, pawn off the brief
to his co-counsel Kiwi Camara, who is hoping to have better luck as a
last-minute addition to the Tenenbaum team than he had in the Jammie
Thomas case. In any event, Camara was not admitted to practice in the
federal district court at the time of the brief's filing; only Nesson
was. Sanctions under such circumstances would be appropriate.
Nesson actually reviewed the MediaSentry motion, he might have decided,
prudently, not to file it, and to be more candid to the court. The
MediaSentry motion nowhere mentions the fact that counsel Camara made the same arguments weeks before in federal district court in Minnesota (in the Jammie Thomas case), and that the district judge there ruled
(at pages 2-12) against him. Is Nesson required by law to tell the
judge in Massachusetts about the judge's decision in Minnesota only
weeks earlier? No, but it makes counsel seem needlessly evasive and
rather less trustworthy, to the detriment of the client Tenenbaum.
"At the level of TCP/IP packet communications (as opposed to at the level of web browsers that translate such communications into human-readable form), the Internet is not readily accessible to the general public." MediaSentry Motion at 12.Thus, according to Tenenbaum, the only information that is publicly available is information that is readily displayed by a web browser or other client software. Therefore, any peek at information (HTML source code even?) that is not ordinarily displayed by the browser or client software -- no matter how public that information appears to be -- now triggers criminal liability according to Tenenbaum.
"The communications system at the TCP/IP level requires special expertise to access. . . . An ordinary person could not have [decoded the TCP/IP packets] because the Internet is not designed for ordinary people to listen in on such packet transmissions." Id.