January 18th, 2009
RIAA protests webcasting of Tenenbaum legal hearing
The RIAA really doesn’t like a Massachusetts federal judge’s ruling allowing webcasting of a legal hearing in its filesharing case against Joel Tenenbaum.
After U.S. District Court Nancy Gertner approved a motion by counsel Charles Nesson, to narrowcast legal arguments to a Harvard website, from which it would be broadcast “gavel to gavel,” the RIAA appealed the decision to the First District U.S. Court of Appeals.
(On a legal note, Ray Beckerman notes that the RIAA’s motion is bizarrely titled a “motion for writ of mandamus or prohibition” – those being two different things — and the RIAA lawyers appear to be simply unsure about which.)
Read RIAA’s Petition for a Writ of Mandamus or Prohibition here
Skipping over the arguments about whether the court is bound by Judicial Conference opinions on broadcasting hearings, I was interested in this argument:
[Rather than providing a "public benefit" to the generation most impacted by RIAA litigation], the district court’s chosen means to achieve this so-called “public benefit” is deeply flawed – indeed it is a means that appears specifically designed to benefit the Defendant and his counsel to the detriment of Petitioners.
The RIAA objects to the fact that the proceedings would be broadcast over a Harvard Berkman Center – “an entity that was founded by and is currently co-directed by Mr. Tenenbaum’s counsel” – server. The RIAA says the use of the anti-RIAA Berkman website is “specifically designed to promote Defendant’s interests in this case.”
The fact that Nesson, Tenenbaum’s lawyer, moved for the broadcast, rather than CVN – the company that would be narrowcasting – suggests a conflict of interest.
Bizarrely, RIAA also says that broadcasting the Jan. 22 hearing in its entirety would constitute unfair selectivity. It points out that there have been many similar lawsuits nationwide and that webcasting this one hearing
would not put the spotlight on the courts’ decisions in these cases nationwide or even the single decision in this case. Instead it would likely serve to highlight selectively the arguments of a single counsel in a limited part of a single case.
That’s a head-scratcher, since the hearing will be broadcast in its entirety.
I find it unlikely the Court of Appeals would overturn Judge Gertner’s decision. The RIAA says they merely have to show “irreparable harm.” Despite their arguments, I don’t see the harm – at least not enough harm to justify overturning the district court. There may be something in their bias argument. Perhaps the RIAA could be given the opportunity to relay the CVN signal, in addition to Berkman, or the relay could be moved to a third-party site.
