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Dumb and Stupider

As mentioned in my last column, the Recording Industry of America has dropped (or at least claims to have dropped) its five-year-long campaign of suing and shaking down people who may or may not have downloaded music in a manner that may or may not be illegal. One reason I think they’ve backed off, is that things are getting sticky for the RIAA in a couple of court cases.

One of these cases, Sony BMG v. Tenenbaum, is heating up in federal court in Boston. The defendant is represented by attorneys from Harvard’s Berkman Center for Internet and Society, who appear to be a little sloppy (badly botching some basic subpoena procedures) but also wildly creative. They’ve convinced the judge to order some upcoming arguments to be Webcast.

This was pretty shocking, because federal court proceedings rarely, if ever, are filmed or broadcast. But this decision is part of a trend to opening up the courts to TV cameras. As you may know, there’s been considerable debate about televising court proceedings for as long as there’s been television, and the opponents’ reasoning has become increasingly thin and their arguments increasingly shrill. As the O.J. Simpson trial coverage proved (I think), televising court proceeds can go a long way toward demystifying the legal process and educating the public in the finer points of procedure and evidence. And IMHO, these positives wildly outweigh any of the negatives.

So this federal judge in Boston ordered that the argument can be Webcast, stating that the matter was of interest to a lot of people, countering the RIAA’s arguments that defendant’s attorneys would use the Webcast to “increase their notoriety” by pointing out that the RIAA’s admitted strategy in these lawsuits is publicity of the “dangers” of downloading. Like, the RIAA wants to use the courts as a vehicle for scary press releases, but wants to shut the door when reality rears its head.

In other words, the RIAA wants you to be afraid of being sued, but it sure doesn’t want you to think about it much beyond raw, primal fear. Like the great and powerful Oz, the RIAA doesn’t want you to look behind the curtains.

The judge also had a particularly memorable long-view observation, one that is going to resonate in courtroom camera arguments for years to come:

In many ways, this case is about the so-called Internet Generation—the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. . . . It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if almost exclusively, over the Internet. . . .

The RIAA hustled to the federal appeals court to stop the Webcast, and the trial judge has postponed the to-be-filmed hearing while the matter is decided upstairs. The RIAA’s reasons are truly mind-boggling.

For one thing, they appear to be afraid that their expensive lawyers’ precious arguments will get mashed up and reposted on the Web, making them look even more ridiculous than they do in real time. Really. That’s their argument.

Petitioners [the RIAA] are concerned that, unlike a trial transcript, 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.


Where does one begin? First, it’s not “unlike a trial transcript.” It’s just like a trial transcript, except with a movie added on! Second, statements are taken out of context all the time, everywhere. Most of the RIAA’s legal arguments are built upon taking previous court decisions out of context, so it’s a little hypocritical to complain about someone else using the practice. Third, people could, hypothetically, mash up the Harvard lawyer’s arguments, too. They won’t, though, unless the RIAA pays someone to do it. Why not? Because people don’t hate the Harvard lawyers. People do hate the RIAA, though.

Finally, if the RIAA execs were worried before about having their lawyers’ performances mashed up and stuck up on YouTube, they should be mortified now. By making this whiny, spurious argument, the RIAA is now in the sights of every good-time video artist in the universe. After they lose their silly motion and the argument is Webcast, we’ll be able to sit back and enjoy a deluge of cruel, hysterical, creative commentary. Viva la Internet.

—Paul Rapp

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