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
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
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.