Judge Mulls Sanctions Against Berkman Center Founder

A federal judge on Tuesday suggested she would sanction Charles Nesson, the founder of Harvard University’s Berkman Center for Internet and Society, for his “blatant disregard” of court orders.

About Nesson is defending a former Boston University student in what later this month is expected to become the nation’s second file-sharing lawsuit brought by the Recording Industry Association of America to go before a jury. The first resulted in a $1.92 million judgment last month against a Minnesota woman for sharing 24 songs on Kazaa.

U.S. District Judge Nancy Gertner on Tuesday, in a one-paragraph order, demanded Nesson to explain why he should not be fined for recording court proceedings and posting and tweeting them to the internet in violation of the court’s orders.

“The Court is deeply concerned that the Defendant has violated the Court’s June 16, 2009 Order 850 as well as the Court’s oral order at the June 26, 2009 hearing. Both orders made clear that deposition recordings, while permitted within the terms of Rule 30(b)(3), were not to be made public via the internet. Indeed, at the hearing, the Court said that “recording” the upcoming deposition did not mean “posting it on the internet,” to which Mr. Nesson replied, “Okay. Thank you.” Although Mr. Nesson did not object to the order, seek to clarify it, or raise any issue with respect to either the fact of the order or its breadth, he nevertheless made portions of the Palfrey deposition available to the public on the Berkman Center website. See http://cyber.law.harvard.edu/~nesson/palfrey%20_deposition01.mp3 (last visited July 7, 2009); http://cyber.law.harvard.edu/~nesson/after_my_tweet.mp3 (last visited July 7, 2009). As a result, the Defendant is hereby ORDERED to SHOW CAUSE, by July 9, 2009, why he or his counsel should not be sanctioned for what appears to be blatant disregard of a court order on an issue that the Court has addressed repeatedly in this case.”

Threat Level on Monday summarized the recording industry’s allegations against Nesson in a story detailing the RIAA’s request to the judge that she order Nesson to remove from the internet ”illegal” recordings. In a telephone interview with Threat Level, Nesson defended his actions, which the judge suggested violated court orders and a state law requiring all parties involved in a communication consent to its recording.

“I certainly don’t agree that I am violating any law,” said Nesson, who defended Daniel Ellsberg in the Pentagon Papers case.

Jury selection in the Joel Tenenbaum file-sharing case, which Nesson is handling for free, is scheduled in three weeks.

The RIAA began its file-sharing litigation campaign five years ago, and most of the 30,000 defendants have settled out of court for a few thousand dollars.