While the bizarre antics and odd courtroom proceedings of The Pirate Bay trial in Sweden have dominated news recently, another high-profile file-sharing case on this side of the Atlantic has generated plenty of recent craziness, too. And this is craziness of a special breed—how many federal trials involve a defense attorney who previously represented the judge, appeals to the Department of Justice to intervene, a lengthy hearing about whether a trial can be webcast to the world, and a judicial admonition to lawyers about taping each other's conversations?

Graduate student Joel Tenenbaum faces nearly a million dollars in possible fines after being sued by the RIAA. After first defending himself, federal judge Nancy Gertner hooked Tenenbaum up with Professor Charles Nesson of Harvard Law School. Nesson then deputized his law students to do most of the work in the case (see our in-depth profile of them). This was all atypical enough, but the case quickly got much weirder.

Taping the lawyers

Earlier this week, Judge Gertner issued a ruling (PDF) in which various scheduling matters were addressed. At the end of the document came these curious lines:

"An issue has arisen with respect to the recording of counsel communications. The parties are advised that any such recording without permission of the participants, as well as the broadcast of such communications, runs afoul of Mass. Gen. L. c. 272 � 99."

The judge also isn't happy with Tenenbaum's legal team over their apparent failure to follow the rules.

Say what? Upon hearing the news, we suspected that this was directed at Nesson. He had, for instance, already recorded Tenenbaum's entire deposition and placed it on the Web. Listening to it a few weeks ago, I was struck by the apparent annoyance of the music industry lawyers when they asked Nesson if he was taping the proceedings, and he said he was.

Copyright lawyer Ben Sheffner did some digging of his own and confirmed the suspicion. Nesson had been asking permission to tape each interaction with RIAA lawyers; when they objected, he refused to participate in certain meetings.

The judge also isn't happy with Tenenbaum's legal team over their apparent failure to follow the rules. "For the period from August 7, 2007 until September 22, 2008, defendant Joel Tenenbaum was not represented by counsel," she wrote. "The Court understands that a pro se litigant may not be familiar with the Court's Rules and, during that time, took this into account in construing his submissions. Tenenbaum, however, is now represented by counsel—accordingly, familiarity with the both the Federal Rules and the Local Rules of the District of Massachusetts is presumed and expected."

Bring in the cavalry

Back on February 13, Nesson wrote a letter to the Department of Justice, asking it to intervene in the case. Nesson didn't claim his client was innocent—indeed, he appears to admit Tenenbaum's guilt when it comes to downloading music. Instead, he argues that the statutory damages of up to $150,000 per song are so outrageous as to be unconstitutional.

"We ask you to intervene in Joel's case on behalf of the people of the United States of America," says the letter, "to save the constitutionality of Section 504(c) by interpreting its damage provision for willful infringement to apply only to commercial infringers. If applied to such individuals as Joel, who has made no commercial use of plaintiffs' copyrights, the statute violates the Constitution."

The letter was addressed to Ed Kneedler, the Acting Solicitor General, but the filename is actually "letter-to-elena-1.pdf," a reference to Obama's new pick for Solicitor General, Elena Kagan. Kagan is awaiting Senate confirmation to the post, and her previous job was as a dean... of Harvard Law School.

Who defended whom?

Then there's the issue of whether Nesson has actually served as a lawyer for Judge Gertner. The judge raised the issue back in January, noting that the two had both been involved in the same case 25 years ago but saying that Nesson had not defended her (as a defense lawyer at the time, Gertner was subpoenaed by the prosecution; she objected and fought the subpoena attempt).

But Sheffner has also turned up evidence that Nesson did represent Gertner in that case. Given the length of time that has passed, he doesn't believe it will now be an issue in the case. We checked with the RIAA, which had no comment on how it would proceed.

The arrangement could prove potentially problematic. As we noted in our profile of the Harvard Law students defending Tenenbaum, Judge Gertner has issued some astonishing statements form the bench. She actually put Tenenbaum in touch with Nesson, and during a later hearing in her courtroom told the music industry lawyers that they were "basically bankrupting people, and it's terribly critical that you stop it."

That courtroom webcast

Finally, there's the webcast issue. Nesson and his students have pushed hard to have the entire trial streamed online. Gertner said she would allow it for one hearing and consider it for the whole trial. The RIAA appealed, and the appeals court agreed to look into the matter.

Gertner had previously indicated that she had the discretion to allow recording under First Circuit rules, and neither Nesson nor the RIAA suggested that the First Circuit had ruled differently (the RIAA didn't believe she should allow the webcast, but for different reasons). So it seems fairly embarrassing to all parties when the appeals court recently issued a terse statement (PDF) saying that "no party has yet addressed" a 1996 resolution passed by the Judicial Council of the First Circuit.

That resolution states clearly that judges in the First Circuit should "continue to bar the taking of photographs and radio and television coverage of proceedings in the United States district courts within the circuit, except as otherwise provided for ceremonial occasions."

This, in other words, was the statement which Gertner believed not to exist, and which nobody else appeared to dig up, either. Whoops.

The webcast issue remains on hold pending the appeals court's ruling, but the delay has already pushed back the start of Tenenbaum's trial from March into June, at the earliest. Before then, we'll find out if Nesson will be sanctioned by the judge for his own attempt to depose one of the music industry lawyers in the case, and to hold the deposition in a large Harvard hall.