Tag Archives: Gertner

The Tenenbaum Strikes Back (Or, at least, writes a press release)

In the ongoing saga of litigation between Joel Tenenbaum and the recording industry (blogged here), the record companies have filed an appeal (blogged here) of U.S. District Court Judge Nancy Gertner’s Order (pdf) allowing a narrowcast of the oral argument that is to take place on January 22, on Tenenbaum’s motions related to the constitutionality of a number of provisions of the Copyright Act.  Joel and his “legal team” from Harvard have struck back, well, sort of, with a press release reacting to the move (pdf.) Among their comments:

“If the RIAA’s position is to educate people about the business and legal climate of the music industry, it is unclear to us why they are appealing this decision. Further, we believe that the true public interest in this case is permitting civil involvement in courtroom proceedings. Our case is fundamentally about the ‘so-called Internet generation,’ and it is seemingly appropriate that such an opportunity be made available to these individuals.[…]”

The (Copyright) Rebels Strike Back

The (Copyright) Rebels Strike Back

Hmm, that sounds familiar.  It echoes what Judge Gerter said in her Order (and what I echoed in my blog posting.)

Tenenbaum’s team has a website, with copies of all the legal pleadings, for all to review. Stay tuned, true believers (to mix some sci-fi/fantasy metaphors).

Hat tip to Read Write Web, where I discovered the release.

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In seeking mandamus writ, what are the record companies afraid of?

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.

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Real CourtTV– Judge Nancy Gerner allows live streaming of oral argument

As reported by ComputerWorld here, United States District Judge Nancy Gertner has agreed to allow a streaming webcast of an oral argument occurring on January 22 in Capitol Records v. Alaujan and Sony BMG Music Entertainment v. Tenenbaum.  The oral argument is on Mr. Tenenbaum’s Motions to Amend Counterclaims, opposition to the record companies’ Motion to Dismiss the Counterclaims, and a Motion for Joinder of the RIAA.  Mr. Tenenbaum, a Boston University Ph.D. candidate, has been accused of using peer-to-peer file sharing to download music.  He got an attorney– Charles Nesson, professor of law at Harvard and of the Berkman Center for Internet and Society.

Because the proceedings on January 22 are only oral argument, the Court reasoned, “narrowcasting” the proceedings will not influence the performance of any witnesses or testimony. And, because the record companies hope to discourage illegal file sharing through general deterrence built up from the publicity of lawsuits across the country, the Court was “curios” as to why the record companies objected to the motion.  Therefore, the Court reasoned:

The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these filesharing lawsuits.

The Courtroom View Network (CVN) will create the narrowcast using the cameras (likely to be fairly low-res security cameras and monitors) already installed in the courtroom, and the Berkman Center will rebroadcast on http://cyber.law.harvard.edu.  I’ll be tuning in to hear Professor Nesson’s arguments regarding the constitutionality of the fines potentially imposed by the Copyright Act, as well as the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.

(A copy of the PDF decision of the Court is here.)

In addition, kudos to Judge Gertner for being brave and allowing this narrowcast. I’m generally not a huge fan of cameras in the courtroom, especially during trials, as I do believe that it intimidates jurors, affects witness testimony, and may cause grandstanding by judges and attorneys (especially those who see a trial as “free attorney advertising” or judges who are subject to reappointment through popular-vote elections).  But oral argument, particularly in circumstances like this, is a different kettle of fish.  I’m excited to see how the record company attorneys respond.

United States Ditrict Judge Nancy Gertner for Supreme Court?

United States Ditrict Judge Nancy Gertner for Supreme Court?

I first heard of Judge Gertner during the early Blakely/Booker era in 2004 and 2005. She was a pioneer in reacting to the decisions, and has become a sentencing expert.  She’s also a blogger.  She’s a Yale grad, appointed to the bench by President Clinton, and has been very outspoken on a number of civil and criminal justice issues. I would think a jurist of her caliber would be a perfect Supreme Court nominee for President-elect Obama, especially if Justices Stevens, Souter, or Ginsburg were to retire soon.  She’s brilliant, thoughtful, progressive-leaning (in a literal, as well as political, sense–how many other judges have blogs and allow webcasting?), and, as a district judge, she brings insight to the court about the day-to-day practicalities of jurisprudence that no other sitting justice currently has. She may suffer, though, from “too much information-itis,” as with some other long-time Supreme Court hopefuls, just because she’s said too much about too many topics that may seriously frighten center-leaning Democrats and Republicans. But both her future–and this oral argument–will be something to watch.


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