Friday, February 13, 2009

First Circuit refuses to consider news media amicus brief on on webcast issue; cites potential need for recusal

The First Circuit has refused to consider an amicus brief by submitted by the AP, New York Times, and other major news organizations in support of an order permitting a webcast of an upcoming motion hearing in the record labels' copyright suit against accused peer-to-peer infringer Joel Tenenbaum. The court rejected the brief on the grounds that "[a]cceptance of the brief might create a need that would not otherwise exist for judicial recusal." The First Circuit's order did not specify the reason for the possible recusal; a likely scenario would be that one or more of the judges owns stock in the companies at issue. Also today, the First Circuit said it would accept amicus briefs submitted by the EFF (which I joined) and Courtroom View Network (which would provide the webcast of the Feb. 24 hearing). The record labels, which oppose the webcast, did not oppose submission of any of the amicus briefs.

I think it's unlikely that the court's refusal to consider the AP brief will change the ultimate outcome of its decision on the webcast. But it highlights what a mistake it was for Tenenbaum's counsel to explicitly rely on amicus briefs rather than making its own arguments -- especially when there was no guarantee that the court would even agree to consider those briefs. Tenenbaum's team is very lucky that it still has 2 friends left standing.

(h/t Recording Industry vs. The People)

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