I do not, however, support turning the proceedings into a circus, which seems to be exactly what Tenenbaum and his attorneys are trying to do. Here's what's happening: as part of their efforts to oppose the Jan. 22 webcast, the labels have sought to stay the District Court's order allowing the Internet "narrowcast." That's a reasonable tactic given the pendency of their appeal; without a stay, the appeal would be moot if it isn't decided by the 22nd. If the stay is granted, then presumably the hearing would go on, albeit without a webcast (just like 99.99% of all hearings in federal court).
But now Tenenbaum and his attorneys say that if the stay is granted (i.e., no webcast), then they believe the hearing shouldn't even take place on the 22nd. As sympathetic as I am to having the hearing webcast, Tenenbaum's position here is the height of chutzpah. The point of the hearing is to give the parties the opportunity to argue several important issues to the judge; whether the hearing happens to be webcast is of secondary or tertiary importance. As noted above, virtually all proceedings in federal court are (unfortunately) conducted without webcasts (or other forms of broadcast), and it's elevating Tenenbaum's and his allies' PR desires over actual court business to say that a hearing should be postponed just because it would be conducted the same way as virtually all similar proceedings (open to all attendees, but no recording allowed).
So what do Tenenbaum's attorneys want to do on the 22nd if the hearing is postponed based on the labels' motion to stay the order granting the webcast? Well, just move their circus into a different tent. Today Tenenbaum's attorneys filed a "Conditional Motion to Compel Deposition of Matthew Oppenheim on January 22, 2009." This motion is an example of real low-life litigating. Oppenheim is an attorney who has litigated on behalf of the labels and their trade association (the RIAA) for over a decade, including in the suits against individual p2p infringers. (Of course this role -- which has resulted in his name appearing on countless public court documents -- makes him a nefarious "mystery man" among copyleft conspiracy theorists.)
As Tenenbaum's attorneys well know, virtually every question they could possibly ask Oppenheim would be subject to a valid objection on the grounds that it calls for information squarely protected by the attorney-client privilege. They say they want to ask him about his
knowledge of the steps taken by Plaintiffs against Defendant before and after the commencement of this action; the formulation and execution of the litigation campaign of which this suit against Defendant is a part; the decision-making process that gave rise to the campaign; and the document flow and decision-making process among the four Plaintiffs and the RIAA.A more clearly privileged set of topics could hardly be imagined. Seeking to depose the opposing party's litigation counsel is considered a truly underhanded tactic, done for no reason other than to harass. And, in this case, to publicly embarrass. For Tenenbaum's attorneys are asking to depose Oppenheim not in a usual setting like a private conference room, but in the Ames Courtroom at Harvard Law School -- hardly a setting conducive to a quiet, orderly deposition:
It seems obvious that Tenenbaum's attorneys' main purpose in seeking to depose Oppenheim is to create a spectacle, where the labels' lawyers are forced to make hundreds of privilege objections -- all "recorded audiovisually" for posterity, not to mention mash-ups and remixes. Unclear whether the Berkman Center will fill the seats with a copyleft chorus.
I want to be supportive of all litigants when they seek to shine sunlight on legal proceedings. But stunts like the ones Tenenbaum's attorneys are attempting to stage only give ammunition to those who (mistakenly, I believe) want to keep federal courtroom doors barred to electronic media. What a shame.
(h/t Recording Industry vs. The People.) Photo credit.