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RIAA Takes Aim at Harvard Professor by Jonathan Hunter February 9th, 2008 Delicious

Relevant Links:

Charles Nesson
The Complaint
The Counterclaim
DTDACDI Act of 1999
Tenenbaum Website
RIAA Strategy
Nesson Memo
Oppenheim on Wikipedia
Jammie Thomas on Wikipedia
RIAA Motion
Rule 37
Rule 11
RIAA Email
Harvard Avoidance

RIAA Moves to Sanction Harvard Law Professor Charles Nesson

The Recording Industry Association of America (RIAA) seems determined to conjure up a public relations nightmare.

Just weeks after announcing an end to its file-sharing litigation campaign, the RIAA has sought sanctions against Harvard Law Professor Charles Nesson. The RIAA alleges that Nesson filed a motion with “no factual or legal basis” in his capacity as counsel to Boston University doctoral student Joel Tenenbaum. The group has asked has asked a Massachusetts district court to sanction Nesson under Federal Rule of Civil Procedure 37, and has also threatened Nesson with sanctions under Rule 11.

The RIAA sued Joel Tenenbaum in 2005 for sharing 7 songs over the internet. In November of last year, Nesson agreed to represent Tenenbaum, and filed a counterclaim alleging that the RIAA had abused legal process. Nesson also claimed that the governing statute, the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, mandates constitutionally excessive damages for copyright infringement — up to $150,000 per song for willful violations.

A group of Nesson’s students assisting in Tenenbaum’s defense recently unveiled a new website explaining their perspective on the case and providing links to downloadable versions of both parties’ court filings.

Shortly before Christmas, the RIAA announced its surprising plan to abandon its longstanding lawsuit campaign against online music sharers. Instead, RIAA says it will work with internet service providers outside of the courtroom to curb music piracy. In spite of its change in strategy, the RIAA does not plan to drop ongoing file-sharing cases, like Tenenbaum’s.

On Jan. 20, Nesson moved to compel the deposition of attorney Matthew Oppenheim, a former senior vice president of the RIAA, after Oppenheim failed to attend a scheduled deposition. According to Nesson, Oppenheim has assumed a “central role in the prosecution of the instant action, and in the broader litigation campaign of which this action is a part.” Nesson says that deposing Oppenheim is “necessary to the Defendant’s fair defense” and “reasonably calculated to lead to the discovery of admissible evidence.”

Oppenheim’s exact role in the RIAA’s legal campaign is unclear. He does not appear to be currently employed by the RIAA, but has represented the RIAA in the past. Oppenheim was present at the trial of Minnesotan Jammie Thomas in 2007 — the only other file-sharing case to go to trial.

But two days after Nesson filed the motion to compel Oppenheim’s deposition, the RIAA moved to sanction Nesson under Rule 37, which governs sanctions for failure to make disclosures or cooperate in discovery. The RIAA’s motion contends that Oppenheim’s deposition was “never subpoenaed, never noticed, and never conferred about." The RIAA has requested reasonable attorney’s fees in resisting Nesson’s motion under Rule 37(a)(5)(B). Nesson maintains that Oppenheim was properly served with a notice of deposition and a subpoena.

The RIAA placed the blame for the allegedly groundless motion squarely on Nesson’s shoulders. According to the RIAA, “Defendant’s counsel, rather that Defendant, is responsible for these failures to confer and to follow simple rules.” The RIAA added: “Defendant’s counsel is not above the rules and, absent such sanction, Defendant’s counsel’s blatant disregard for fundamental court procedure will only continue.”

The RIAA may also seek to sanction Nesson under Rule 11, which provides for sanctions against parties who file motions or other papers with no legal or factual basis or for an improper purpose, such as harassment. But the RIAA must allow Nesson 21 days to withdraw his motion before seeking sanctions, pursuant to Rule 11(c)(2).

Nesson, however, shows no signs of backing down. In an email response to the RIAA after it threatened to seek sanctions, Nesson replied, “[O]ur motion stands . . . [W]e welcome your opposition."

Sanctioning Nesson seems an odd strategy for the RIAA, given that it has conspicuously avoided suing Harvard students for file-sharing in the past. Why the RIAA would risk waking the sleeping giant of Harvard Law School by launching a personal attack on a well-respected professor just weeks after deciding to eschew the courtroom is something of a mystery. Whatever the RIAA’s motivation, the move seems more apt to further tarnish the group’s public image than to stem the tide of file-sharing.