As I discussed yesterday here, Judge Nancy Gertner of the District of Massachusetts agreed to allow web “narrowcasting” of an oral argument on the motions regarding the constitutionality of various provisions of the Copyright Act filed by a defendant (and his Harvard Law Professor attorney) in a file sharing copyright infringement case before her. Her opinion (pdf) contained a well-reasoned decision to break with the federal court tradition of excluding cameras in the courtroom.
Now, as reported by the blogs from Wired, attorneys for the record companies have filed a motion (pdf) for a stay of the order pending their request for a writ of mandamus to the First Circuit. In other words, the record companies are so scared of the oral argument they’re going to file an emergency motion with the First Circuit Court of Appeals (the court that reviews Judge Gertner’s decisions) asking for an order prohibiting her from allowing a third-party to use the camera and audio feeds already in the courtroom to narowcast the oral argument online.
All I can say is, What are they so scared of? As Judge Gertner pointed out in her opinion, the RIAA and record companies for a long while now have claimed that they can’t use everyone who illegally file shares copyrighted music, but they can try to publicize their lawsuits to effect some “general deterrence”– persuade others not to share music illegally because of the threat of being sued. At the same time, many in the on-line world have an extremely negative view of the record companies and the RIAA. You’d think that they would (reluctantly) welcome the idea that the cyber-community would be able to hear their side of the story, at least as it relates to the constitutionality of these statutes. Certainly there aren’t issues of confidentiality here (meaning that the record companies will be discussing confidential trade secrets or other secret information as part of their oral argument); this is almost pure legal argument. So now, they look like real weasels who are so afraid of any public exposure (except the limited press of “we won” after the conclusion of a case) that they will file emergency motions to avoid being heard and seen on real time. Because it’s oral argument, there will be no testimony presented, and thus the ultimate decision and outcome should not be affected by the presence or absence of the narrowcast. If the narrowcast won’t have any likely affect on the outcome, why would the record companies spend at least $30,000 on this writ of mandamus (maybe even $100,000)? What are they so scared of?
- Are they afraid that Judge Gertner, a left-leaning, pro-individual kind of jurist, will read them the riot act? I find that hard to believe. Even if she doesn’t like the record companies, any reasonable jurist (especially a district court) is extremely hesitant to declare federal law unconstitutional without strong appellate court support. So far, the Copyright Act has withstood just about every constitutional challenge levied against it. She may ask tough questions, but on the law, the record companies have to know they have the upper hand.
- Are they afraid that there will be some sort of crowd reaction by the people in the gallery (most of whom, I would guess, would not be sympathetic to the record companies) and/or that the crowd may be more likely to make a scene on camera, which may be embarrassing? Perhaps, but that also doesn’t give Judge Gertner the benefit of the doubt that she will control her own courtroom. There aren’t too many federal judges I know that would stand by and allow a spectator to even bring a newspaper into the courtroom, much less applaud, protest, or say one single word, before the Courtroom Security Officers and the U.S. Marshals are sicked on them like hungry predators.
- Are they afraid that people will record the stream and then re-edit it to make misleading videos? Once again, that would be a difficult thing, considering the low level streaming (anyone could easily spot edits).
- Or, are they just afraid that their lead attorney will say something he or she regrets at the hearing, and it will be blasted all over the country? I don’t think so, because if there’s one thing I know about trial attorneys, it’s that a firm ego is necessary for the job… if you go in doubting yourself, you’ll be a trainwreck.
- Are they afraid that it will further undermine their reputation in the U.S.? Probably not. If anything, as I mentioned before, it would give the record companies a chance to present their side–uncensored. And, if the Judge rules in the record company’s favor (particularly regarding the constitutional issues) it will give the skeptics in cyberspace an opportunity to understand the foundation of the ruling.
So, I’m completely befuddled. Anyone else have any thoughts? Leave a comment.