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.
Posts
Pardon me, but you are so wrong when state that "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". The whole point of this webcast is to remove one of the key advantages of the RIAA -- and that is keeping these whole proceedings secret. If the defendants, some of them innocent and some not, could share information, not have the lame ex parte crap being pulled on them as John Does, not be subjected to very intrusive discovery requests, not be badgered to admin to begin the supposed infringer just because their name is on the internet access account, etc., etc., etc., etc.
ReplyDeleteNo offense, I'm sure you're a nice guy and all, but please open your eyes and see what the RIAA is trying to do to the judicial system. Really look at their history in this 5+ year "education" campaign. Look at how many cases went to court versus how many cases were settled out of court. Why is that? Did they purposely figure out that paying $3K - $5K versus paying for an all out legal defense was the better option?
You probably won't post this comment for reasons I won't go into here. You know them well enough. I can only hope that Tenenbaum and Nesson get this hearing narrowcasted and out there for others to see how the RIAA (ab)uses the legal system and the general public.
It's completely false to say that the denial of a webcast would result in "keeping these whole proceedings secret." If there is no webcast, the hearing will simply be like virtually every other hearing in federal court -- totally open to the public and press, just with no electronic recording or broadcasting allowed. All the briefs and supporting documents related to the hearing are also publicly available on the Internet, either through PACER or various blogs. And Judge Gertner's order on the motions will be public and, I'm sure, widely disseminated. Hardly a case of "keeping these whole proceedings secret."
ReplyDeleteWhat is completely clear to this man is that you don't understand the issues at all and are attacking the defense from a pro-industry point of view.
ReplyDeleteAs the judge himself has pointed out, there are no time-sensitive pressing issues here. Carefully considered justice is better than shoot from the hip pronouncements.
Furthermore, if a web-cast were to be no effective difference from trial transcripts or PACER (yeah, this man is sure that the common folks all have those expensive PACER accounts) then there would have never been any debate over this subject in the first place. Pictures don't lie (aren't disingenuous in lawyer-speak). An audio-visual presentation not only communicates far more than dry words on paper, but also makes the heart of the proceedings far more accessible and understandable to the great unwashed masses.
This man's opinion is that you seek to advantage one side over the other with your arguments against a full and free pictures-and-sound faithful reproduction of these proceedings to the disadvantage of many who wish to understand the issue better. He cannot see any well-reasoned argument that you have presented, or are likely to present, to the contrary.
{The Common Speaking}
To anonymous 10:42:
ReplyDeleteI am baffled by your statement that I have argued "against a full and free pictures-and-sound faithful reproduction of these proceedings." I have made clear umpteen times that I SUPPORT the webcast.
Mr. Sheffner,
ReplyDeleteI agree with with anonymous 10:42 above and I can only take your word that you support the webcast. But have you taken into consideration when you make the following statement:
"the hearing will simply be like virtually every other hearing in federal court -- totally open to the public and press, just with no electronic recording or broadcasting allowed."
This is just like the umpteen thousand legal actions that the RIAA has taken against people so far. And these people that are being sued are basically being kept in the dark about previous outcomes/defenses/legal arguments/etc. If this webcast were to happen as intended by the defendant, then this would allow everyone to debate the arguments more effectively. Not to sound argumentative, but hasn't one of the positions taken by the RIAA been to promote education about the legal trouble that you may incur with copyright infringement? Wouldn't this webcast be a good way to show everyone? What is the RIAA afraid of with letting everyone see what is in effect "the people's court" (no offense or intended allusion to Judge Wapner)? What could it possibly hurt with letting people see what is going on with *their* judicial system?
I just don't get these people. First they *want* to educate by suing people, then they scream and moan when the defendant wants to webcast what would probably be a good deterent to some? I mean, I had to go to small claims court once as the plaintiff and even though the defendants were guilty as sin, I was still scared stiff when the judge walked in the room. I can only imagine going in front of a federal judge and potentially being liable for several hundred thousand dollars!
I can only see good coming out of this webcast and believe that the judge has correctly decided that there are no time sensitive issues involved so we should wait to make sure that all parties get what they need in these legal proceedings.
I *DO NOT* condone any kind of copyright infringement at all, but there has to be a better way of settling these matters without the heavy handed approach taken by the plaintiffs.
"But stunts like the ones Tenenbaum's attorneys are attempting to stage..."
ReplyDeletePerhaps you prefer the stunts of the RIAA which include suing printers.... and dead people?
Ryan S
www.eZee.se
I'm not aware of the labels "suing a printer." Please provide a cite.
ReplyDeleteIf they sued a dead person, I suspect it was because that person's name was on an ISP account found to be offering music for download, and the issue could be easily corrected (if even necessary; it's possible to sue a decedent's estate).
But at most, the two things you referred to were errors -- which are not remotely close to the intentional flouting of rules demonstrated by Nesson with regard to the Oppenheim depo.
In my opinion, the RIAA has managed to abuse the legal process much more than the Harvard team could ever do.
ReplyDelete"Seeking to depose the opposing party's litigation counsel is considered a truly underhanded tactic, done for no reason other than to harass"
ReplyDeleteThe damages that the RIAA seeks in these cases is in no way representative of actual loss suffered. Why do you not consider the demand of tens of thousands of dollars for a few songs to be harassment? Why is this form of harassment acceptable to you, but the deposition considered "underhanded"?
It's people like you who are holding back progress on creating realistic copyright law, preferring to defend an obsolete business model over moving forward.
My apologies, I thought you of all people were familiar with these cases so I didn't need to provide details.
ReplyDeleteRIAA sues the dead:
===================
http://www.theregister.co.uk/2005/02/05/riaa_sues_the_dead/
http://www.betanews.com/article/RIAA_Sues_Deceased_Grandmother/1107532260
It should be noted, that she never even had a computer in the house **when she was alive** which kind of takes out your refutation of:
---
"If they sued a dead person, I suspect it was because that person's name was on an ISP account found to be offering music for download"
---
Guess she was downloading songs with a pen and paper, writing the zeros and ones on her pad and then humming the tune.
RIAA goes after printers:
=========================
http://www.p2pnet.net/story/16124
http://www.audioholics.com/news/industry-news/researchers-mpaa-riaa-printer-p2p-file-sharing
http://arstechnica.com/news.ars/post/20080605-study-paints-grim-picture-of-automated-dmca-notice-accuracy.html
http://dmca.cs.washington.edu/uwcse_dmca_tr.pdf
I hope that helped.
Regards,
Ryan S
www.eZee.se
There have been something like 35,000 of these cases -- I'm the first to admit I'm not familiar with them all. And that there have been mistakes along the way.
ReplyDeleteAnd the articles you cite do *not* say that anyone "sued a printer." They report the results of an academic study where the researchers "rigged the software agents to implicate three laserjet printers," specifically to attract infringement notices. "Clever academics trick system" is a far cry from "RIAA sues printer."
http://bits.blogs.nytimes.com/2008/06/05/the-inexact-science-behind-dmca-takedown-notices/
To Ryan S.: I won't publish your latest comment, which includes invective and name-calling. Feel free to try again if you can edit it down to the substance. There are plenty of other places you can post if you want to call the RIAA names.
ReplyDeleteClearly the RIAA is playing extreme hard ball: attacking pro se litigants, intentionally racking up the bills, making questionable settlement demands, etc. Some legal ethicists question the tactic of singling out those least likely to be able to mount a defense - and making a stage-managed media spectacle of their overmatched destruction.
ReplyDeleteHard ball is hard ball. Don't smash someone in the teeth unless you want to get smashed back. The RIAA lawyer could have settled for $5000. So cry me a river for the poor widdle industry lawyer. They are too accustomed to not having a real opponent and have gotten soft. They NEVER would have pushed this case with competent opposing council - The RIAA lawyers thought they had the kid by the gonads and he went and got a dedicated Harvard legal team. Poetic justice that.
As to being an "underhanded" tactic - the line seems to be somewhat arbitrary and largely based on what you view as proper club-house behavior. Which, I might add, seems to favor heavily in the direction of shielding the legal profession from challenge. I can't help but wonder if this doesn't have more to do with counter-claims regarding the unconstitutional nature of these actions than simple harassment.
Also, the requested venue has the same benefit for the Tenenbaum team that the initial actions did for the RIAA - it puts the deponent in an unfamiliar situation where the deposing attorney has extreme comfort. Again, cry me a river. If you want to play hardball, don't get whiny when the pitcher dusts you off.
One other point. While a large percentage of court proceedings are not broadcast - many are. It is perfectly valid to request the hearing be postponed until correct procedure is established for the situation. The RIAA has often used their vast resources to produce carefully crafted media operations in conjunction with any hearing that benefits them. Their association members literally control traditional broadcast media and have used that control to create false impressions and disseminate them to the public at large. In this instance, I believe allowing a webcast is an effective remedy in balancing a weapon the RIAA consistently employs as part of it's legal strategy.
-Kent
No one is crying for the labels or their attorneys. I am simply saying that Tenenbaum's attorneys should abide by the basic rules of civil procedure.
ReplyDeleteIt is simply false to say that "many" proceedings in federal court are broadcast. Virtually none are. (Broadcasts in state courts are routine.)
"Seeking to depose the opposing party's litigation counsel is considered a truly underhanded tactic, done for no reason other than to harass."
ReplyDeleteYou're making a sweeping conclusory statement with this quote that is completely unfounded except by your own bias. I don't disregard that defendant's lawyers are unlikely to turn up much discoverable material and/or will run up againist privelage barriers, but when you want to do a complete job at discovery, you attempt to depose everyone reasonably connected. with the litigation.
Certainly while the opposing counsel will not share trial strategy, the defendant's may be able to find other individuals the attorney has spoken with regarding this case in the RIAA and depose them for factual information for their case. For example, finding out who the RIAA network engineers are through opposing counsel and then deposing them for factual information on how the gathered their information.
While deposition of opposing counsel is generally disfavored, it's only disfavored where there are other valid avenues to find discoverable information. Your comment regarding it as "underhanded" tactic is off base.
To anonymous 12:38:
ReplyDeleteEven in the extremely rare instance where deposing the other side's litigation counsel is appropriate, it is appropriate only as a last resort. For Nesson, it was a first resort. I'm sure he could ID business people at the labels to depose; if not, he could take 30(b)(6) depositions. And -- contrary to your comment -- Nesson was quite clear that he was after the labels' litigation strategy -- not merely the identity of witnesses. He said he wanted to question Oppenheim about:
http://copyrightsandcampaigns.blogspot.com/2009/01/tenenbaums-legal-team-seeks-to-stage.html
"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."
That's simply out of bounds. And the judge, in denying Nesson's motion to compel, indicated that she agrees.