While it seems on one hand that the Recording Industry Association of America (RIAA) is standing down its enforcement efforts, there are several reasons to wonder whether this is really the plan or if there is more under-handed and insidious behavior yet to come. As was discussed on Monday, an RIAA favorite attorney will become the Deputy Attorney Generalof the United States, and third in command at the Department of Justice. Additionally, while the RIAA has given up pursuing some college students, they seem to be quite persistent in going after Joel Tenenbaum in Massachusetts. In this case, the RIAA sued a number of defendants in the United States District Court of the District of Massachusetts, and most were not represented by counsel and simply defaulted. Joel Tenenbaum was different though. He is one of the few defendants represented by counsel, and his counsel is Professor Charles Nesson of Harvard Law School and the Berkman Center for Internet and Society, so he is extremely well represented given this is exactly what the Berkman Center specializes in.
In any event, Nesson requested that motions hearings scheduled for January 22, 2009, be broadcast over the Internet. The RIAA objected, which Federal District Judge Nancy Gertner found to be curious, as do I. For years and years the RIAA has explained over and over again that its campaign was not vindictive, but they wanted to go after infringers and use this as a way to inform and educate the public, who admittedly does largely have incorrect notions about what is allowable under the copyright laws. But if information and education is the goal, why not let everyone hear the RIAA make their arguments?
In her original Order granting the Internet broadcast of the hearing Judge Gertner said:
While the Plaintiffs object to the narrowcasting of this proceeding, see Pl. Resp. to Mot. to Allow CVN to Provide Coverage, their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation.
Nothing in the local rules of the District Court of Massachusetts, the policies of the Judicial Council for the First Circuit, life, or logic suggests that this motion should be denied. As Judge Weinstein noted: “No reason has been suggested to depart from the policy that, in general, the public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, so long as there is no interference with the due process, the dignity of the litigants, jurors, and witnesses, or with other appropriate aspects of the administration of justice.”
Much like the proceedings before then-Judge Alito and audiovisual coverage of legal arguments in Courts of Appeals around the country, the district court hearing now at issue involves only legal argument. Moreover, coverage will be “gavel to gavel” — streaming a complete recording of the hearing to a publicly available website — not edited for an evening news sound bite. The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these files haring lawsuits.
So the January 22, 2009 hearing was to be webcast and available through the Berkman Center website. But then the RIAA appealed this matter to the United States Court of Appeals for the First Circuit. So late yesterday Judge Gertner, doing the responsible thing, issued an Order delaying the hearingand rescheduling the hearing for February 24, 2009. She says that this will give the First Circuit ample opportunity to review the legal arguments raised by the RIAA and determine whether to allow the webcast to move forward or prohibit the public from listening in on the matter.
I realize that in the aftermath of the OJ Simpson saga where Judge Lance Ito really allowed the defense attorneys and prosecutors make a mockery of the court many are concerned with opening up judicial proceedings. While grandstanding is no doubt a concern in trials, I can’t understand what the problem would be with recording a hearing on legal issues and making it available to the public. The United States Court of Appeals for the Federal Circuit does this now on at least a semi-regular basis, and even the United States Supreme Court makes audio recordings of its own oral arguments available for the public. I just see no reason to prevent the public from gaining more access to the judicial system, and the RIAA arguments about there being a fear that tech savvy individuals may edit and misrepresent the hearing is specious at best.
Notwithstanding, a tip of the hat goes to Judge Gertner. While I believe she is legally correct, given that there is nothing time sensitive about this particular hearing you might as well wait for the First Circuit to weigh in, if they are going to at all. It is nice to see a judge exercise both good judgment and discretion. A job well done!
About the Author
|Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
B.S. in Electrical Engineering, Rutgers University
Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide