The Volokh Conspiracy - Seriously, Who <i>Is</i> Advising These Guys?

Ben Sheffner, over on Copyright & Campaigns, has a nice piece on the efforts of record industry lawyers to overturn an order providing for live Internet coverage of a court hearing next Thursday in one of the RIAA's lawsuits asserting copyright infringement against the operator/user of a peer-to-peer file-sharing system (RIAA v. Tenenbaum). The case (quoting from the court's order):

. . . like many others now before the Court, is one for copyright infringement under 17 U.S.C. § 106. The Plaintiffs are some of the nation's largest record companies. The Defendants in these consolidated cases are individual computer users — mainly college students — who, the Plaintiffs claim, used "peer-to- peer" file-sharing software to download and disseminate music without paying for it, infringing the Plaintiffs' copyrights. Many of the Defendants have defaulted or settled, largely without the benefit of counsel, subject to damages awards between $3,000 and $10,000

District Judge Nancy Gertner had granted a motion, filed by the Berkman Center at Harvard (which is representing the defendant), allowing a webcast operator, Courtroom View Network, to stream Thursday's proceedings live on the Berkman Center website. The RIAA has filed several "extraordinary writs" — for mandamus and prohibition — seeking to overturn the order.

I should say, to begin with, that I'm generally a big fan of live broadcasts of court proceedings; in fact, I think we should do more demanding of our public officials that they provide such access routinely. [I clerked at the Supreme Court back in 1993, and it annoyed me then, and it annoys me still, that live broadcasts of Supreme Court proceedings are not made generally and widely available] And I should also say that I'm not a huge fan of the record labels' campaign against individual file-sharers (Sheffner views it a little more positively). But whatever position you take on these matters, this really is not a pretty sight. What are they afraid of? Here's what the record labels put in their papers:

Petitioners [the labels] 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.

How tone deaf are these guys? An industry that is so completely out of touch with its customers is not long for this world. The RIAA, I grant you, is in a tough spot regarding file-sharing, and it has taken (as it has every right to take) a hard line on the law in the battle against file-sharing. But come on, guys. "Statements will be taken out of context"!! No!! I hate to be the one to tell you this, but: Welcome to the 21st century. Yes, the tapes will be all over the Net, and people will do all sorts of things with them, some hilarious, some idiotic, many in between. Yes, some of that will make the record labels (and their lawyers) look like fools. We have a name for that: "free speech." It is, by and large, a really good thing. Plus, people seem to enjoy engaging in it. Why not try to figure out how you, too, can play in this new space? You don't have enough thumbs for all of the holes in this dike, and we, the public, are justified in finding your efforts to do so contemptible.

	[David Post, January 18, 2009 at 9:16am] Trackbacks Seriously, Who Is Advising These Guys? Ben Sheffner, over on Copyright & Campaigns, has a nice piece on the efforts of record industry lawyers to overturn an order providing for live Internet coverage of a court hearing next Thursday in one of the RIAA's lawsuits asserting copyright infringement against the operator/user of a peer-to-peer file-sharing system (RIAA v. Tenenbaum). The case (quoting from the court's order): . . . like many others now before the Court, is one for copyright infringement under 17 U.S.C. § 106. The Plaintiffs are some of the nation's largest record companies. The Defendants in these consolidated cases are individual computer users — mainly college students — who, the Plaintiffs claim, used "peer-to- peer" file-sharing software to download and disseminate music without paying for it, infringing the Plaintiffs' copyrights. Many of the Defendants have defaulted or settled, largely without the benefit of counsel, subject to damages awards between $3,000 and $10,000 District Judge Nancy Gertner had granted a motion, filed by the Berkman Center at Harvard (which is representing the defendant), allowing a webcast operator, Courtroom View Network, to stream Thursday's proceedings live on the Berkman Center website. The RIAA has filed several "extraordinary writs" — for mandamus and prohibition — seeking to overturn the order. I should say, to begin with, that I'm generally a big fan of live broadcasts of court proceedings; in fact, I think we should do more demanding of our public officials that they provide such access routinely. [I clerked at the Supreme Court back in 1993, and it annoyed me then, and it annoys me still, that live broadcasts of Supreme Court proceedings are not made generally and widely available] And I should also say that I'm not a huge fan of the record labels' campaign against individual file-sharers (Sheffner views it a little more positively). But whatever position you take on these matters, this really is not a pretty sight. What are they afraid of? Here's what the record labels put in their papers: Petitioners [the labels] 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. How tone deaf are these guys? An industry that is so completely out of touch with its customers is not long for this world. The RIAA, I grant you, is in a tough spot regarding file-sharing, and it has taken (as it has every right to take) a hard line on the law in the battle against file-sharing. But come on, guys. "Statements will be taken out of context"!! No!! I hate to be the one to tell you this, but: Welcome to the 21st century. Yes, the tapes will be all over the Net, and people will do all sorts of things with them, some hilarious, some idiotic, many in between. Yes, some of that will make the record labels (and their lawyers) look like fools. We have a name for that: "free speech." It is, by and large, a really good thing. Plus, people seem to enjoy engaging in it. Why not try to figure out how you, too, can play in this new space? You don't have enough thumbs for all of the holes in this dike, and we, the public, are justified in finding your efforts to do so contemptible.