6:57am PT by Eriq Gardner
Meek Mill Docuseries Producers Say Lawyer Can't Seize "Off the Record" Interview Tape
Sources sometimes get candid and say things they shouldn't when they think they're off the record and no one is recording. Such is the case for A. Charles Peruto Jr., a criminal defense attorney who represents Pennsylvania judge Genece Brinkley, now infamous for the harsh sentence imposed on rapper Meek Mill for violating probation on gun and drug charges.
Peruto agreed to give an interview for an upcoming documentary series produced by Jay-Z's Roc Nation, IPC Television and Amazon Alternative about Meek's rise to fame and his 10-year battle with Philadelphia justice officials. The attorney alleges that after the interview ended he asked to go off the record. The camera was turned to the wall, but it still was recording when Peruto opined that Brinkley should grant Mill a new trial. The comment later made the press rounds. Peruto is now suing to ensure that the "off the record" conversation is not included in the documentary.
The question raised by this case: Who owns a digitized recording of spoken words? The guy who spoke or the journalist who owns the equipment and hit the record button?
Peruto claims he does. He has asserted a cause of action of replevin in an effort to regain "personal property."
Nonsense, retorts Roc Nation and the other defendants.
"Peruto's replevin claim fails for a basic and threshold reason," states a motion to dismiss (read here) filed in Pennsylvania federal court on Wednesday. "He alleges the property at issue is the 'oral communication' defendants recorded. Peruto's spoken words, however, are not goods or chattel. And, in turn, the words he uttered are not physical property subject to a replevin action as a matter of law."
The producers argue that casting the alleged property at issue as "digitized communications" doesn't dodge black-letter law limiting a replevin claim. They say Peruto would only be able to recover intangible personal property that's embodied in a physical object, and that property existing in digital form only — "social media accounts, software, satellite signals and internet domain names" are examples given — can't be stolen and recovered through the kind of lawsuit that Peruto is attempting.
The producers offer an alternative bar to Peruto's claim to be able to seize the interview tape: He can't establish title and an exclusive right of possession.
"Peruto acknowledges the audio recording at issue was made and stored by 'defendants' personnel,'" continues the dismissal motion. "He does not claim to own any of the equipment they used to record the interview or store the recording. Indeed, he alleges that the recording was made on 'defendants' devices.' To the extent copies of the recording exist on tangible objects, such as defendants' computers or storage media, Peruto has no property interest in those objects, much less title and the exclusive right to possess them."
It will now be Peruto's turn to respond to the bid for dismissal. He's already signaled his main theory in the case that because he was unaware of the recording, his communications were illegally intercepted and thus he held on to some aspect of the words that he spoke.
The defendants anticipate this argument by suggesting he's confusing property with privacy. Peruto has filed a separate lawsuit asserting violation of the Wiretap Act, which may be a better vehicle to seek redress for being illicitly taped. Pennsylvania is a two-party consent state, but Peruto is suing under the federal law, where only one party needs to consent to being taped. Since the journalist who conducted the interview obviously did, the producers are separately arguing for dismissal in that case.
But even if Peruto was able to overcome this roadblock in the wiretapping suit, the question would then become whether a privacy violation leads to an injunction. Recovering the "off the record" tape, or at least blocking its distribution, would seem to be extraordinary relief. Then again, judges can occasionally be tyrannical. That, after all, is in part how this whole situation began.