Record labels ask First Circuit to block webcast of federal court hearing; I dissent!

I support the record labels' litigation against individual infringers. The campaign isn't always pretty or popular, but it's necessary, and entirely justified by the rampant use of peer-to-peer networks to steal (and I do think that's the appropriate word here) music. The infringers needed to be taught a harsh lesson, and the public needed to be educated that the act of using p2p networks to obtain music without paying for it, no matter how widespread, was illegal, and carried real risk of liability. And it's useful (and quite amusing!) to keep in mind that prominent voices among the copyleft actually supported the concept of suing individual p2p users -- until the labels called their bluff and started doing just that.

All that said, I have to admit that I'm disappointed and troubled by the labels' most recent move: aggressively seeking to block the webcast of an important upcoming hearing in one of the individual p2p cases. Here's what's happening: 5 of the major labels have sued an individual named Joel Tenenbaum for copying and distributing their recordings without permission or payment. The case was bubbling along quietly like many others until Judge Nancy Gertner of federal district court in Boston hooked up Tenenbaum with Harvard Law Professor Charles Nesson, who is affiliated with Harvard's Berkman Center for Internet and Society, a den of copyleft activists who routinely oppose copyright owners' enforcement of their rights. (For a real trip, check out Nesson's blog, which reads as if it's heavily influenced by this aspect of his life.)

Nesson and his team are aggressively defending Tenenbaum, whose case is heading to trial in March 2009. They have counterclaimed for abuse of process, and for a declaration that the statutory damages sought by the plaintiffs are unconstitutionally excessive. A hearing on the labels' motion to dismiss the counterclaims (opposition here) is set for January 22.

Nesson's team filed a motion to permit webcasting of the proceedings. Judge Gertner granted the motion, at least as to the important Jan. 22 hearing (over the label's opposition). Specifically, the court's order permits a specialist in courtroom webcasts called Courtroom View Network to stream the hearing to the Berkman Center, which "will make the recording publicly available for all non-commercial uses via its website." Also, ordered the court, "The 'narrowcast' will be gavel-to-gavel, with no editing by CVN or the parties."

What I find extraordinary is the length to which the labels are going to fight Judge Gertner's order permitting the webcast. The labels have sought a writ of mandamus or prohibition from the First Circuit, asking the Court of Appeals to block the webcast. The labels have basically 2 arguments: 1) the webcast is not permitted by the court's Local Rules or by federal courts' policies; and 2) they will suffer "irreparable harm" if the webcast is permitted. I'll skip #1, which is mostly about a routine matter of statutory construction, and focus on #2, which is vastly more interesting.

The heart of the labels' argument against the webcast is this:

Petitioners [the labels] are concerned that, unlike a trial transicipt, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and []rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioners' case.

Wow. This is not just an argument against this particular webcast. I don't think it's an exaggeration to say that this is actually an attack on all news coverage of court proceedings. No newspaper or television network just prints court transcripts verbatim. Rather, they "edit" and "splice" them into articles or broadcasts. (So do bloggers. Just try and stop 'em.) Sometimes they may unfairly "manipulate" the facts, which should certainly be condemned, but that's no reason to ban journalists -- professional or amateur -- from the courtroom.

I am considerably more sympathetic to the labels' criticism of the fact that the court has permitted the webcast to be shown only through the website of the Berkman Center, which is obviously no disinterested observer. Much more appropriate would be for the court (perhaps through CVN), to make the feed of the hearing available to all takers, who could put it on their own websites and even -- as the First Amendment obviously allows -- edit, splice, comment, blog, praise, criticize, and explain the proceedings. The court's attempt to ensure that the webcast is "not edited for an evening news soundbite" is impractical, and probably unconstitutional. "Soundbites" have gotten a bad name, but they are nothing more than electronic "quotations" of the kind that are unremarkable when they appear in the text of news articles.

As Judge Gertner correctly pointed out in her order, the labels themselves have stated that one important aspect of their litigation against individuals is the public-relations benefit of demonstrating to the world that copyright infringement will not be tolerated. For the labels now to attempt to make public discussion of one of their cases -- which is being litigated in open court where anyone is allowed to attend -- as difficult as possible for those of us who can't be there in person, is baffling, and unjustified.

I hope the labels win their argument on the merits at the Jan. 22 hearing; I think their position is correct. I also hope that we are all able to see it.

(h/t Recording Industry vs. The People)