RIAA Fights Internet Broadcast of File-Sharing Hearing

As you may have heard, a Massachusetts federal district court judge recently granted the motion of the defendant in a file-sharing copyright infringement case brought by the RIAA to broadcast a pre-trial hearing over the Internet. Yesterday, that order was stayed so that the RIAA could appeal it to the First Circuit. The RIAA's mandamus petition is interesting reading. The main ground of the petition is essentially that the judge's order is against the rules, namely rule 83.3 of the local rules.

Really. Let's take a look at Rule 83.3.

-- (a) Recording and Broadcasting Prohibited. Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held. [Emphasis supplied]

Looks to me like the judge has some discretion there. But, the RIAA argues, allowing recording conflicts with the policies of the Judicial Conference of the United States. This appears to be a stronger argument -- the Judicial Conference has repeatedly come out against permitting the recording or broadcast of court proceedings. In a 2007 statement to Congress, Judge John Tenheim explained the bases for the opposition:

-- The Judicial Conference position is based on a thoughtful and reasoned concern regarding the impact cameras could have on trial proceedings. This legislation has the potential to undermine the fundamental right of citizens to a fair trial. It could jeopardize court security and the safety of trial participants, including judges, U.S. attorneys, trial counsel, U.S. marshals, court reporters, and courtroom deputies. The use of cameras in the trial courts could also raise privacy concerns and produce intimidating effects on litigants, witnesses, and jurors, many of whom have no direct connection to the proceeding. In addition, appearing on television could lead some trial participants to act more dramatically, to pontificate about their personal views, to promote commercial interests to a national audience, or to increase their courtroom actions so as to lengthen their appearance on camera. Finally, camera coverage could become a negotiating tactic in pretrial settlement discussions or cause parties to choose not to exercise their right to have a trial.

While few if any of those concerns apply in this case, there's no arguing that the Judicial Conference is not a fan of broadcasting contentious courtroom proceedings.

So is the RIAA simply defending the Judicial Conference against the actions of a wayward District Court judge? No; the RIAA is concerned that allowing the hearing to be broadcast will cause "irreparable harm." The nature of that harm?

-- Here, where the district court's interpretation of the Local Rule may well open the doors to a flood of applications by broadcasters seeking to record and broadcast other proceedings throughout the District of Massachusetts, there is necessarily a "sufficient showing of irreparable harm" to merit the exercise of this Court's power of mandamus.

So the RIAA is also defending the rest of the Massachusetts Federal Judiciary from the increased burdens of having to deal with this "flood of applications" from others seeking permission to broadcast other trials. A very noble position, to be sure, but of course the RIAA is also worried on its own behalf:

-- Nor is there any doubt that Petitioners would suffer irreparable harm if the proposed broadcast of the proceedings in this case is allowed to proceed.

By way of proof, the RIAA then offers the following explanation:

-- The Judicial Conference has repeatedly expressed the view that presence of cameras in district court proceedings "can do irreparable harm to a citizen's right to a fair trial."

That, however, is by no means proof that irreparable harm would occur in this case. The RIAA's next argument is rather ironic, given the nature of the dispute:

-- Petitioners 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 susceptible to editing and manipulation by any reasonably tech-savvy individual. Even without any improper modification, statements may be taken out of context, spliced together with other statements, and broadcast rebroadcast [sic] as if it were an accurate transcript.

Of course, a written transcript is even more susceptible to manipulation than is a video or audio recording. It's laughably easy to select statements out of context from a written transcript and present them in a way that is unfavorable to one side or the other. If anything, a video record would make any such manipulation more evident, with cuts and splices to the record appearing as odd "jumps" or "skips" in the recording or in the appearance of the speaker.

The RIAA saves what to me is its strongest argument for last: that the Beekman Center, which would host the broadcast, is strongly opposed to the RIAA's suits against alleged file sharers and is closely allied with the defense team. This, however, is the issue that is easiest to fix -- allow a relatively neutral party, such as a "traditional" news organization, to host the feed.

The RIAA, of course, has a legitimate reason to complain where the manner in which users copy or distribute its members' recordings reaches beyond the often-murky boundaries of fair use. Its vehement opposition to having this hearing broadcast appears to masquerade a real concern about looking bad before an Internet audience with a stated concern about protecting the integrity of the judical system. That's a little ironic in view of the RIAA's recent decision to more or less abandon the courts and let ISPs regulate offending users.

Read Wired's take on this here and here.