Saturday, January 17, 2009

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)


  1. You can also be "pro-copyright owner" without supporting the RIAA's scorched earth campaign against ordinary folks, most of whom either never even heard of filesharing or didn't know it might involve copyright infringement.

    I didn't come into this struggle as a member of the "copyleft". I came into it because I detest bullies and bullying. Hopefully this attempt by the RIAA to keep the proceedings from public scrutiny will start to open your eyes as to the nature of the people with whom you have been in league.

    I too am "pro-copyright".

    But I am even more "pro-decency, pro-fairness, and pro-humanity".

    Best regards,


    Recording Industry vs. The People

  2. I don't question Mr. Beckerman's motives (though I disagree with many of his positions). But I have noticed a consistent pattern of others on the copyleft mouthing a perfunctory "I support copyright" and then opposing at every turn copyright owners' efforts to actually protect their rights by fighting infringement. "Supporting copyright" necessarily entails (among other things) suing infringers. I think it's fair to be skeptical of the "pro-copyright" bona fides of those who never actually take the side of a copyright owner in a real-life infringement suit.

  3. Stating that copyright infringement is stealing instantly makes you unqualified to have an opinion.

  4. It's unfortunate that Ben talks past Ray's central issue, which is the RIAA's predilection for abuse of process. If he had read Ray's blog, he would know how the RIAA has zealously persecuted people on evidence that is tenuous at best; while doing everything possible to drain their targets' limited resources with long, drawn-out garbage motion practice so that the defendant has to cave before they can see their day in court.

    Ben should realize that the kind of law that the RIAA practices is one reason why most average Americans viscerally hate lawyers.

    And Ben should also realize that addressing Ray in the third person is a bit twee.

  5. Ben,

    I have to agree with your points on the RIAA's desire to block the broadcast. If they have a strong cogent message to send, this is the perfect way to get it to their target audience. Instead they fear ridicule, which should indicate problems with what they are saying. No doubt they will be, but if the message is the truth and convincing, it should win out.

    As I view their efforts, I am forever confused on how they go about it. If as stated, their strategy is to reduce piracy, the tactics employed to achieve that goal are woeful. So far they seem ineffective, the rate of piracy hasn't been reduced, there seems to be no larger public consensus supporting their POV, they have pursued a scortched earth policy that provides substantial material for Blogs like Mr Berckerman's and there seems to be no end game in sight. It seems that the RIAA came up with one idea and this is the best they have.

  6. Ben said:

    "Supporting copyright" necessarily entails (among other things) suing infringers.

    I don't agree Ben. I don't think our federal judicial system should be flooded with lawsuits against minor infringements by noncommercial users. I can remember a time when copyright lawyers were gentlemen and ladies, and brought litigation only as a last resort. Maybe I'm just older than you.

  7. To Russell:

    You say, "If as stated, their strategy is to reduce piracy, the tactics employed to achieve that goal are woeful. So far they seem ineffective, the rate of piracy hasn't been reduced..."

    With respect, I don't think asking whether "the rate of piracy has[] been reduced" is quite the right question. Rather, I would ask, "Is the rate of piracy lower today than it would be had the industry not employed the anti-piracy tactics and strategies it has over the past decade?" Admittedly, it's a very difficult question to answer. But I suspect that we'd have even more piracy today had the industry -- as the copyleft urged -- simply lain down and never sued Napster, Grokster, Aimster, etc., and individual infringers. But we'll never know for sure.

  8. To Ray Beckerman at 7:52:

    I do think it's unfortunate that a full-blown federal case, with all the onerous procedures and expense that entails, has to be made of each of these allegations of infringement. But unfortunately there's no federal small-claims court, and so a full-blown federal case is the only kind of copyright suit there is. Prof. Lemley has proposed "some sort of quick, cheap arbitration system that enables copyright owners to get some limited relief against abusers of p2p systems," which I think is an alternative worth exploring. See

    As for whether the labels are going after "minor infringements," I've read that they are only targeting those found with large numbers (hundreds?) of files in their shared folders. I don't consider that level of infringement "minor."

    As to whether infringement by p2p users is "noncommercial," here's what the 9th Circuit said in Napster:

    "The district court determined that Napster users engage in commercial use of the copyrighted materials largely because (1) 'a host user sending a file cannot be said to engage in a personal use when distributing that file to an anonymous requester' and (2) 'Napster users get for free something they would ordinarily have to buy.' Napster, 114 F. Supp. 2d at 912. The district court's findings are not clearly erroneous."

    Lastly, I *do* think suing individuals was the labels' last resort, undertaken only after it appeared that targeting facilitators like Napster and Grokster (as well as distributing their music through legitimate digital channels) wasn't sufficient to stem the rampant piracy. And I hardly think it's ungentlemanly or un-ladilike for an attorney to sue on behalf of a client whose copyrights are being massively infringed. And I doubt there ever was a time when it was.

  9. Ben, if you think it's a "commercial" use for someone who neither buys nor sells anything, I think you're missing the point of the word "commercial". I don't think I need to cite legal precedents for a definition of what "commercial" means, but Judge Davis noted that when someone does it for their personal listening pleasure, it's not "commercial".

    Bringing suits, instead of entering into cease and desist agreements, is not necessary, and if you or a loved one ever winds up as a defendant in one of these cases, you'll realize how improprer they were.

  10. Re commercial/non-commercial: the 9th Circuit recognized that in the p2p context, this isn't simply people doing it "for their personal listening pleasure"; rather, they're offering copies to any stranger with an Internet connection. That's commercial, at least here in the 9th Circuit.

    I hardly think "cease and desist agreements" would be sufficient to deter and penalize p2p infringement. The lawsuits only achieve their purpose if they sting.

    Lastly, my 96-year-old grandfather's music publishing company ( was one of the plaintiffs in the Grokster litigation. If I or any of my loved ones were caught using p2p networks for illegal purposes, lawsuits would be the least of our worries.

  11. I think when Copylefters say they support copyright, they tend to mean a copyright in the form it was practiced before the internet.

    Copyright was and is valuable as a means of arbitrating negotations between commercial players (and I take the common sense meaning of "commercial" in that it covers uses that are primarily monetary, not simply uses that could potentially be monetized) that are roughly the same size. It ensures that credit is given and profits are shared appropriately.

    In its current form, copyright seems completely useless for governing the unequal relationship between labels and listeners. Listeners are not commercial players, and they don't seek to commercial gain even when sharing their music with complete strangers. The opposite of "personal use" is "public use", not "commercial use". I don't care how much authority the 9th Circuit has on the matter, their definition of commercial is twisted beyond recognition.

    It doesn't matter how much the lawsuits sting ... the fact is it's not feasible to sue more than a tiny fraction of file sharers, and even the ones that do lose feel like they've been subject to a shakedown, not a legitimate punishment.

    I have no idea if it's legally appropriate to copyright, but I feel like common law should be invoked here. The RIAA has clearly lost in the court of public opinion, and the law should reflect this.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.