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.