Thursday, June 18, 2009

Why remote bloggers will never replace on-scene reporters

Techdirt on the Jammie Thomas-Rasset trial:
The trial itself was, again as expected, something of a circus, rather than anything interesting or compelling.
I have read nearly everything written about this case over the past six months. I have read nearly every court document. And for the past four days I sat in Judge Michael Davis' Minneapolis courtroom, observing every single moment of the proceedings. And I can say definitively that Techdirt's statement above is the most absurdly wrongheaded thing I have read about this entire matter.

There was nothing remotely "circus"-like about the proceedings. No one who actually saw what occurred would say that, and no one who attended would agree with that. Judge Davis runs a very tight ship. He doesn't tolerate anyone in his hushed, lushly-carpeted courtroom pulling a Blackberry from his pocket, or chewing a stick of gum, let alone doing anything circus-like. I witnessed nothing but complete professionalism in the courtroom by attorneys from both sides. I witnessed numerous small acts of civility, from the plaintiffs' Matt Oppenheim wishing defense attorney Kiwi Camara a happy 25th birthday (this, a week after Camara made the false and highly inflammatory accusation that Oppenheim had "violated the ethical rules governing our profession on an unprecedented scale"), to Camara apologizing to plaintiffs' attorney Tim Reynolds when he had unwittingly cut him off during an oral argument. There was no yelling. There were no antics. The trial was the farthest thing from a "circus" I could imagine.

And the trial was not "interesting or compelling"? I suppose that's in the eye of the beholder, but I'm confident no one who was in the courtroom would agree. Except for a few dull moments as witnesses paged through copyright registration forms or discussed MAC addresses, the testimony was fast-paced, and highly "interesting [and] compelling." The case involved novel copyright issues: what does it mean to "distribute" works in the peer-to-peer context? How does one detect infringement when it takes place on a system intended to hide it? Must a copyright owner really bring into court "deposit copies" of its works? How does one prove chain-of-title after a company has gone through numerous mergers and name-changes? And Thomas-Rasset's own testimony, during which she cried on the stand and came up with a dramatic new story (ultimately disbelieved by the jury) that attempted to pin blame on her ex-boyfriend and kids, was riveting.

While the verdict for the plaintiffs may look inevitable in retrospect, that was not at all the case as the jury was out deliberating. No one I spoke with, among the attorneys and the reporters covering the trial, was confident in predicting the outcome. I, for one, thought it was entirely possible that some jurors would believe Thomas-Rasset's new story, or at least be so sympathetic with her professed desire to protect her kids that they would find for her for that reason alone. The air in the courtroom was thick with suspense as the jurors filed into the courtroom after reaching their decision, and the clerk's slow reading of the verdict form's repetitive, song-by-song, questions, only added to the tension. When she read the initial "$80,000" figure, there were gasps, and quick scribbling to see what 24 times $80,000 added up to. " "Interesting"? "Compelling?" Precisely.

Some things a blogger shouldn't have to be in the courtroom to get right, like the basic legal facts. But Techdirt got those wrong, too. It wrote:
[T]he court chose to fine her $1.92 million...
Wrong. The court did not choose the amount of damages. The jury did. (And it did so on its own, not as urged to a specific amount by the plaintiffs, whose counsel Tim Reynolds stated in closing argument: "How much in damages is for you to decide. We leave this in your good hands.") And this was a civil, not a criminal, trial; there was no "fine," and, contra Techdirt, she was not "found guilty."

Techdirt even says that this was "A verdict that [the RIAA] can gloat about and misrepresent to its own advantages" and refers to "RIAA gloating." I was there. I witnessed no "misrepresent[ations]" of the verdict by either side (and of course Techdirt points to none). And "gloating" is 180 degrees from how the RIAA actually acted after the verdict. The reality is that a (rather subdued, given what had just occurred) RIAA spokeswoman gave reporters a very brief statement in which she emphasized that the labels remain willing to settle. "Gloat[ers]" crow loudly about their victories; they don't soberly indicate that they are willing to accept far less than the jury just awarded to resolve the case.

Don't get me wrong; I love the medium of blogging, and many bloggers do impressive work. But reading absolute, inaccurate nonsense like Techdirt's report on the Thomas-Rasset verdict only impresses upon me the value of real reporters, who sit in courtrooms and city council chambers and stand at police lines and outside closed Congressional committee rooms, knowing that's often the only way to get the true story. Their dwindling numbers sadden me.


  1. As former reporters (including "courts and cops" and City Hall beats), we could not agree with you more on the value of real, live, first-hand and accurate reporting. (We always used to get peeved when the TV dolls would come in just before verdict seeking context and a case synopsis after we had been dogging the case from arraignment and trial from opening argument.)

    Unfortunately, inaccuracy in reporting on IP matters is a widespread problem in the profession that is not limited to online journals and writers. The mainstream press often gets the basics woefully inaccurate. As copyright and other IP issues are more likely than ever to affect Joe or Jane Citizen, accuracy in IP reporting is of paramount importance.

  2. a travesty that we interested members of the digital public cannot tune in for ourselves instead of having to rely on reporters

  3. I too could not agree more with your comments regarding the crucial importance for on-the-scene reporting. Moreover, having been at the trial three days out of the four, my impressions were very similar to yours: there was no circus, and the trial was, on the contrary, absolutely "interesting and compelling". Thanks for the post.


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