Remember the telephonic hearing held Monday in the Jammie Thomas case, at which Judge Michael Davis heard argument on the record labels' attempt to preclude objections to the copyright registrations for songs Thomas is accused of infringing? Well, Harvard Law Professor Charles Nesson -- who is an unofficial member of the Thomas defense team -- dialed in as well. But he did so not as a member of the Thomas team, but in his capacity as Joel Tenenbaum's counsel of record.
And Nesson, as he has tried to do repeatedly before, recorded the proceedings -- at least until Judge Davis told him to stop (after plaintiffs' counsel Timothy Reynolds alerted the court to the possibility that Nesson might be recording). Nesson later blogged that he believes he's in the right, though "there may be a problem under massachusetts law." (That "problem" is Mass. Gen. L. ch. 272 § 99, which makes it a felony punishable by five years in state prison to record a telephone conversation without the consent of all participants, or to "disclose" that recording. I don't see any exception that allows you to record until someone tells you to knock it off.)
Nesson also indicated on the call that he intends to file a motion to intervene in the Jammie Thomas case on behalf of Tenenbaum, so that Tenenbaum can make an audio recording of all proceedings. And Nesson even posted a draft of his intervention motion (Word doc):
This motion to intervene in the above-captioned matter is filed on behalf of Joel Tenenbaum, who is a defendant in a very closely related case which will go to trial in the District of Massachusetts on July 20, 2009. He makes this motion in his own right as one with a particular interest in the subject of this case, consisting of common claims and defenses involving questions of law and fact common to his own case. Mr. Tenenbaum cannot afford to come to Minnesota to observe first-hand the proceedings in this case. He makes this motion also as an ordinary citizen on behalf of all people of the United States who have a concern about the imposition of the RIAA's litigation campaign on the youth of America and the ulterior purpose behind to campaign to close the net, and who do not have the ability to come to Minnesota to be physically in court.For the record, District of Minnesota Local Rule 83.2(e) clearly bans use of "sound recording devices" in the courtroom.
[Final sentence corrected to make clear that recording devices "may be brought into the courthouse, but must be inoperative and unobtrusive at all times they are in a courtroom."]
UPDATE: plaintiffs have made sure Judge Davis knows what Nesson was doing.