Here's the latest: Tenenbaum's counsel, Harvard Law School professor Charles Nesson, has admitted that he and his team uploaded the seven songs that are the focus of this case to a public file-hosting service, accessible to anyone on earth with an Internet connection. Nesson himself posted a link to files, and the password that made them accessible, on his blog (see p. 25). When questioned by the plaintiffs about the uploads, Nesson apparently removed the link to the songs, but was told by his student and fellow Tenenbaum defender Ray Bilderbeck that he couldn't take the songs down from MegaUpload (though the link now seems to be dead).
Bilderbeck, the team's "designated naysayer," was not pleased: "Well, this made my day.... Charlie's posting to the wider world is a different issue, and I don't know how to deal with it.... The attorney-client waiver might end up killing us...." Bilderbeck had apparently thought he was posting the songs so that only Tenenbaum's legal team could access them, but Nesson posted them to the world. And Bilderbeck wasn't going to take the blame. In an email to Nesson, he wrote:
Yes, this is a fight we do not need. But I didn't do it. You need to be less blazé [sic] about the things that you post. Dammit.Another of Tenenbaum's student defenders, Isaac Meister, was a bit more blunt:
I'd say this could be an 'oh shit' moment.But this was all confidential internal discussion among counsel, clearly protected from disclosure by the attorney-client privilege, and never to see the light of day, right? Are you kidding? Not in Professor Nesson's land of "radical transparency"! Yes, Nesson voluntarily forwarded the incriminating emails, chock-full of admissions, to the plaintiffs' counsel.
It almost seems besides the point, but the labels have filed a motion to compel discovery responses related to Nesson's uploading and the series of events described above:
Plaintiffs have sought discovery regarding the posting of the Exhibit A recordings and the pro-piracy propaganda to Defendant’s counsel’s blog. This information is relevant to the central issue in this case – Defendant’s willful, continuous infringement of Plaintiffs’ copyrighted sound recordings. Indeed, Defendant’s counsel confirmed that “joel’s seven songs” were posted without authorization on Defendant’s counsel’s blog and distributed to the “wider world.” Id.; April 25, 2009 email from Charles Nesson to Eve Burton, Exhibit C. Further, the information sought regarding the brazen infringement of the Exhibit A recordings and the propiracy propaganda is reasonably calculated to elucidate key issues, including willfulness, continuing infringement, actual distribution (or substantial evidence thereof), and the defenses Defendant intends to assert, including fair use, “fairness,” and whether Defendant’s infringement is commercial in nature. Accordingly, discovery into these matters is directly relevant to Plaintiffs’ claims, as well as Defendant’s intended defenses.I suppose this case could get more bizarre. But I have no idea how.