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| Sony v. Tenenbaum - Court Rules Jan. 22 Hearing Can Be Streamed; Sony Appeals |
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Saturday, January 17 2009 @ 02:46 AM EST
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The court in Sony BMG Music v. Tenenbaum -- the
case about a guy who allegedly downloaded seven songs over Kazaa years ago when he was 17 and who is now facing a damages claim of $1 million dollars -- has ruled [PDF] that the hearing on some defense motion can be streamed on the Internet. The hearing is set for January 22nd, beginning at 2 PM Eastern, which is why I'm telling you about it now. We may find the streaming issue decided at the last moment, so this is to prepare you, in case it goes forward.
Update: The hearing has been postponed [PDF] by Judge Gertner until Feb. 24. However, Sony has just filed a Notice of Appeal [PDF] and is asking the lower court to stay the order -- here's Sony's District Court Motion for Stay [PDF] -- so there may be a delay while the courts work the streaming issue out. But the hearing will happen with or without the Internet, although I'll have to keep you posted on precisely when. If it happens on January 22nd, and I hope it will, Harvard's Berkman Center for Internet and Society will have it live. If it doesn't get streamed, I hope some of you in the Boston area will attend for us and send us reports. The case will be tried in Boston, Massachusetts, beginning on March 30th, as currently scheduled, in the US District Court for the District of Massachusetts. I know. I said I wouldn't be doing any articles for a bit, but this is too fascinating and exciting an opportunity, to get to "attend" oral arguments together in a case of this significance, no matter where we are, no matter what side we may be on, and in our jammies even... I so love the Internet. We'll have to wait and see what happens, but meanwhile we can use the time to get up to speed. I hope the appeals court lets the streaming go forward. I'm very much looking forward to this event. The plaintiffs? Not so much. They fought against letting this happen, and they're still fighting. Why is this case important? Let me explain, please, how I understand the issues raised by this case.
Why this case matters.
It's a significant case for a couple of reasons, but here's the one that matters most to me. The defendant's lawyer, Charles Nesson, Harvard Law Professor and a founder of the Berkman Center, is introducing the US Constitution into the discussion. Here's a YouTube interview with Nesson, where he explains the issues from his point of view. His client has filed counterclaims for abuse of process, and at issue is whether it's Constitutional for the music industry to get legislators to pass laws allowing civil trials in file-sharing cases with damages set at excessive levels that don't seem to match the "crime". And if file-sharing is illegal, why are these cases being prosecuted in civil court by private entities? Here's the Notice of Constitutional Question [PDF]. You know how I keep telling you that the courts may be slow, but in time, they start to get it? Well, they're starting to get it, and we're all noticing that the penalties for file sharing aren't equivalent to penalties for stealing a CD from WalMart with the same number of songs on it. Specifically, the defendant is asking if a law can be constitutional that allows civil actions by private entities for what are supposedly criminal matters, when doing so removes safeguards a criminal defendant would otherwise have.
Here's a snip from the Notice of Constitutional Question, challenging the constitutionality of the Copyright Act of 1976 and the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 by raising the following questions:
Statement of questions:
- The Acts authorize prosecutions which are civil in form but criminal in nature. Plaintiffs are attempting to enforce them against Defendant without the criminal safeguards to which he is entitled to under the constitutional requirements of criminal procedure.
-
The Acts unconstitutionally delegate prosecutorial power to private parties.
- The Acts violate constitutional separation of powers by enlisting civil courts and civil process in the prosecution of a strategy of legal extortion being pursued for ulterior purpose.
- The Acts, as applied to Defendant, violate the substantive Due Process requirements of the Fifth and Eighth Amendments to the Constitution by mandating grossly excessive minimum statutory damages and allowing grossly excessive maximum statutory damages.
There are three issues that will be argued at the hearing, a Motion to Amend
Counterclaims [the Counterclaims as pdf], an Opposition to the Plaintiffs'
Motion to Dismiss Counterclaims, and a Motion to
Join the Recording Industry Association of America ("RIAA").
Here's what the judge, the Hon. Nancy Gertner, wrote when rejecting the plaintiff's objections to the limited streaming of the hearing:In many ways, this case is about the so-called Internet
Generation -- the generation that has grown up with computer
technology in general, and the internet in particular, as
commonplace. It is reportedly a generation that does not read
newspapers or watch the evening news, but gets its information
largely, if not almost exclusively, over the internet....
Consistent with the nature of these file-sharing cases, and the
identity of so many of the Defendants, this case is one that has
already garnered substantial attention on the internet....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 file-
sharing lawsuits....
No reason has been suggested to depart from the policy that, in general, the public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, so long as there is no interference with the due process, the dignity of the litigants, jurors, and witnesses, or with other appropriate aspects of the administration of justice. In re Zyprexa Products Liability
Litigation, 2008 WL 1809659 (E.D.N.Y. Mar. 4, 2008) (citing Diane
L. Zimmerman et al., Let the People Observe Their Courts, 61
Judicature 156 (1977)).... The Court believes that the upcoming motion hearing is an
instance where recording and broadcast falls squarely within the
public interest. The First Amendment suggests that court
proceedings be open to the public "whenever practicable."...
"Public" today has a new resonance, especially in this case.
The claims and issues at stake involve the internet, file-sharing
practices, and digital copyright protections. The Defendants are
primarily members of a generation that has grown up with the
internet, who get their news from it, rather than from the
traditional forms of public communication, such as newspapers or
television. Indeed, these cases have generated widespread public
attention, much of it on the internet. Under the circumstances,
the particular relief requested -- "narrowcasting" this
proceeding to a public website -- is uniquely appropriate.
Let the People Observe Their Courts.
Indeed.
Let's do. To help you, here are the other significant filings so far.
The order also makes clear that no other recording devices are permitted, so if by any chance you are in the Boston area and decide to go in person, please respect the judge's order.
The Deposition
I found it interesting, albeit uncomfortable, to listen to the audio of the deposition of the defendant, conducted in September. As the judge clearly recognizes, these cases are about a generational culture clash. The deposition captures that clash perfectly. I hear the defendant frantically trying to figure out how to answer the questions so as to protect himself and his friends and family as best he can from what he may view as ravenous wolves going for all their throats, without knowing the "lingo" in depositions, and hence at a serious disadvantage. If this were a criminal prosecution, obviously the rules would be very different. As it is, he's stuck. By the way, while the alleged downloading happened when he was 17, he's now a graduate student. He offered $500 as restitution, I've heard, but he was turned down. They want the cool million, I guess. And on the other side, the plaintiff's lawyers seem indignant that Joel showed no "respect" -- first, by allegedly file sharing and then showing up for his deposition in a red T-shirt and sun glasses. The nerve! It's almost at the level of a Monty Python sketch. But there's a darker side to it, when you recall that Sony wants a million dollars for seven songs, if he downloaded or uploaded them, or whatever they think he did.
Of course one thinks about Les Miserables. Seven songs, folks, are not worth a million dollars. Period. Should you fine people a million dollars for listening to music? Don't we all do that on the radio? What exactly is the difference? The younger generation simply can't figure out why the music industry doesn't set it up like the radio and leave them alone. And the older generation thinks like landowners -- trespass on *my* land and I'll shoot you on sight, so to speak, and the law says I can.
This case asks the question: even if a defendant is guilty of file sharing, what should the penalty be? And who gets to bring him to a courtroom? What damages or penalties are appropriate? Life in jail for a loaf of bread offends one's sense of simple justice. What about a million bucks for seven songs? If you stole a CD with seven songs from WalMart, do you pay a million dollars in damages? If you listen to seven songs on the radio? What's the difference?
Maybe it is time to reflect on proportionality, even if, like me, you believe copyright law is important. This isn't the Middle Ages, after all, so where is the line?
That's the concept. But it's framed in Constitutional terms, and that is the context in which Sony will have to defend its conduct.
My reflections, as I was listening to the deposition, which I found painful, were on the theme of culture clashes. I heard the plaintiffs' lawyers treating the accused with disgust and disdain, until they realized his lawyer was taping the deposition. And the defendant was trying not to incriminate himself, his family and his friends, but was so totally in the dark as to how to do it successfully, while his disgust for the plaintiff's position also shines through. It's like he's saying, in his mind, "Are you guys *kidding*? Seven songs? You want a million for that?" And the plaintiffs' lawyers have their subtext too, "We're going to crucify you, as an example to others, so they'll quit ruining our client's business." And I'm sitting there thinking, why can't they set up the Internet like the radio? You could listen to music all day on the radio, and no one deposes you as to how many songs you listened to or views it as copyright infringement. To young people, the Internet is exactly the same as a radio, a place to listen for free so you know what you want to buy, if anything. How else can you decide? They don't comprehend why the music industry can't just set up a payment system, and laws, to work like the radio. A true culture clash.
For example, Tenenbaum reportedly asked what he should wear to the deposition, and he was told that everyday clothes were fine, so he showed up in a red Red Sox T-shirt, with the idea that he wanted to send a message that Sony isn't a Boston company -- the lawyers were from Denver -- so it was symbolic of the Red Sox win in the World Series. But to the plaintiff's lawyers, it was interpreted
as a signal that the defendant was being disrespectful because he wasn't in a suit. How do you fix a culture clash like that?
The two sides' attorneys go off the record in tape 1, and they each present what they really think of each other's clients' behavior, and it's a hopeless conversation, a dispute that only a judge can resolve, and of course the law is disproportionately on just one side. But in the US, when all else fails to protect you on an uneven playing field, there is the US Constitution. It was written with the express determination to protect the little guy from overreaching power. And so it is being brought into the RIAA context now, in the hopes of evening out the playing field a little.
The deposition becomes particularly uncomfortable to listen to when the plaintiff's lawyer forces Joel to reveal who else may have used his computer when he was 17 and living at home and the alleged file-sharing occurred. He mentions, after long pauses, his parents and a high school friend, and my heart hurt thinking about the impact on this family and on the friendship and on the defendant, cornered and having to rat out his family and a childhood friend, knowing as he answered that inevitably Sony could now go after them now too, trying to prove who is the "evil filesharer" in this picture. Which apparently they did. How did we get here?
So, that's the context. I'm not trying to tell you how to feel about either of the parties, just sharing what I was feeling as I listened. Neither side, to me, came off perfectly, to be truthful, but in culture clashes, it's always that way. But the important questions are bigger than the parties, namely, if there is a real problem -- and the plaintiffs think there is, because the music industry feels like its business is circling the drain and in their minds folks like Joel who file share are the reason why -- what do you do about it? And that is where the Constitution comes into it the picture, thanks to a lawyer willing to volunteer to take on the responsibility and burden of standing up for the overwhelmed little guy, who probably feels he's being rolled over by a plaintiff with all the money it needs to hire lawyers and experts and, frankly, legislators to crush anyone it perceives as a problem.
Resources
Here's the Supreme Court ruling in Craig v. Harney, referenced in the order, dating from way back in 1947 that found that court hearings are public events and public property. Don't over parse that, by the way. There are still restrictions, as you'll see in this ruling about the oral arguments on the 22nd. It's an interesting ruling, though, for us at Groklaw, because it stands for a general freedom of the press to report on trials without suppression or censorship. A reporter, an editorial writer, and a publisher had been jailed for "constructive criminal contempt" for what the state thought was misreporting on a trial, particularly for saying negative things about the lay judge. But if you think that this is a simple issue, read Justice Felix Frankfurter's dissent, where he highlights some dangers to anything goes by the media. What if they gang up on a judge who is right but unpopular? What if they threaten him and distort what he otherwise would have ruled? To help you understand this point of view, recall the incident when a blog wrote an article asking if SCO had received "mob justice"? It was, as I read it, a blatant attempt to influence the judge to rule more in SCO's favor at the trial. He did rule more in favor of SCO after the trial. Is there a connection? Who knows? But it is what Frankfurter addresses -- where is the line, if there is one, and how far is too far? Can the media tell a judge how to rule in the middle of the actual process? It's a very complex question, and I hope you read the ruling in full and the dissent. [ Update: The article by Roger Parloff, "Did SCO get Linux-mob justice?", referenced here, is now 'disappeared'("The authors have deleted this blog. The content is no longer available."). However, you can still find it here, and I have a saved copy, including all the corrective comments, should any further disappearances come to pass. You can also read it on SCO's legal update page, if you don't mind visiting their site. That would be www.sco.com/company/legal/update. ] Nothing in the law is simple, black or white. It's all about the shadings. You could write books about every detail. In fact, people do. Here's Harvard Law School's Law Library, on YouTube. How I wish someone would set it up so I could visit virtually, sit down in a virtual setting, but then read the real books online! Here's Berkman Center's 575-page Citizen Media Legal Guide, which is broken into various topics, such as Intellectual Property, Dealing with Online Risks, Newsgathering and Privacy, and Risks Associated with Publication. The purpose is to help nonprofessional and professional journalists "understand the legal environment they are operating in," David Ardia, Director and CoFounder of the CMLP, writes. I'll give you an example, from the Risks Associated with Publication. Many think that it's OK to say whatever they wish, as long as the facts are true. Of course, it's not that simple. Actually, some out there may not realize it, but you can't defame someone by making up negative things about them, but there is another area of concern, highlighted by the guide: Second, if you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This would include such things as writing about a person's medical condition, sexual activities, or financial troubles. Did you know that? Did you know you can get in trouble for publishing someone's photo or even using someone's name without permission? For publishing certain confidential business information? See how complicated? But then, viewed from a different angle, why shouldn't there be fine lines drawn, to accommodate the complexity of human activity and situations? Aren't you glad there is a concept like invasion of privacy? I am. Given the low ethics of some, someone has to draw a line for those who have no heart and no internal compass to find that line on their own. You probably study insurance policies and investment materials in detail, not that the latter seems to help anyone these days, I might add, but at least most of us try to know what we're doing before we act. So in legal matters, it's appropriate to do our best to know what the law is and try to be guided by it. The risks are manageable, but you do need to pay attention to more than just an overview, so as to take reasonable steps to avoid obvious pitfalls if you are publishing on the Internet or anywhere else. So, if you're blogging, study!
Here, then, is the order as text, and as usual, the only changes we've made are to collect the footnotes at the end, for the benefit of those who use screen readers, and munging an email address, so bots don't scoop it up and spam away with it. I look forward to sharing this historic event with you.
*************************************
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CAPITOL RECORDS, INC., et al.,
Plaintiffs,
v.
NOOR ALAUJAN,
Defendant.
________
Civ. Action No.
03cv11661-NG
LEAD DOCKET NO.
____________________________
SONY BMG MUSIC ENTERTAINMENT, et al.,
Plaintiffs,
v.
JOEL TENENBAUM,
Defendant.
______
Civ. Action No.
07cv11446-NG
ORIGINAL DOCKET NO.
____________________________
GERTNER, D.J.:
ORDER RE: MOTION TO RECORD AND NARROWCAST HEARING
January 14, 2009
The Defendant's Motion to Permit Audio-Visual Coverage by
the Courtroom View Network ("CVN") (document # 718) of the
January 22, 2009, hearing over a secure internet connection is
GRANTED. CVN will "narrowcast" the audio-visual coverage to the
website of the Berkman Center for Internet and Society, which
will make the recording publicly available for all non-commercial
uses via its website.
I. INTRODUCTION
This case, 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.
Joel Tenenbaum ("Tenenbaum") is one of the few defendants
represented by counsel, Professor Charles Nesson of Harvard Law
School and the Berkman Center for Internet and Society. He has
chosen to challenge the action through a Motion to Amend
Counterclaims (document # 686), his Opposition to the Plaintiffs'
Motion to Dismiss Counterclaims (document # 676), and a Motion to
Join the Recording Industry Association of America ("RIAA")
(document # 693), all of which will be heard on January 22, 2009.
Whether those counterclaims survive or not, he will proceed to a
jury trial in this Court currently scheduled for March 30, 2009.
While Tenenbaum's Motion to Permit Audio-Visual Coverage by CVN
(document # 718) is directed to all proceedings going forward,
this Order addresses only the proceeding on January 22, 2009,
where legal arguments on the motions above will be heard.
In many ways, this case is about the so-called Internet
Generation -- the generation that has grown up with computer
technology in general, and the internet in particular, as
commonplace. It is reportedly a generation that does not read
newspapers or watch the evening news, but gets its information
2
largely, if not almost exclusively, over the internet. See
generally Martha Irvine, Generation Raised Internet Comes of Age,
MSNBC.com, Dec. 13, 2004, http://www.msnbc.msn.com/
id/6645963/.
Consistent with the nature of these file-sharing cases, and the
identity of so many of the Defendants, this case is one that has
already garnered substantial attention on the internet.
While the Plaintiffs object to the narrowcasting of this
proceeding, see Pl. Resp. to Mot. to Allow CVN to Provide
Coverage (document # 728), their objections are curious. At
previous hearings and status conferences, the Plaintiffs have
represented that they initiated these lawsuits not because they
believe they will identify every person illegally downloading
copyrighted material. Rather, they believe that the lawsuits
will deter the Defendants and the wider public from engaging in
illegal file-sharing activities. Their strategy effectively
relies on the publicity resulting from this litigation.
Nothing in the local rules of the District Court of
Massachusetts, the policies of the Judicial Council for the First
Circuit, life, or logic suggests that this motion should be
denied. As Judge Weinstein noted: "No reason has been suggested
to depart from the policy that, in general, the public should be
permitted and encouraged to observe the operation of its courts
3
in the most convenient manner possible, so long as there is no
interference with the due process, the dignity of the litigants,
jurors, and witnesses, or with other appropriate aspects of the
administration of justice." In re Zyprexa Products Liability
Litigation, 2008 WL 1809659 (E.D.N.Y. Mar. 4, 2008) (citing Diane
L. Zimmerman et al., Let the People Observe Their Courts, 61
Judicature 156 (1977)); see also Robert Barnes, A Renewed Call To
Televise High Court, Wash. Post, February 12, 2007 at A15 ("The
two newest justices, Roberts and Samuel A. Alito Jr., sounded
open to the possibility during their confirmation hearings, and
Alito favored allowing cameras in his previous job as an
appellate court judge.").
Much like the proceedings before then-Judge Alito and audio-
visual coverage of legal arguments in Courts of Appeals around
the country, the district court hearing now at issue involves
only legal argument. Moreover, coverage will be "gavel to gavel"
-- streaming a complete recording of the hearing to a publicly
available website -- not edited for an evening news soundbite.
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 file-
sharing lawsuits.
4
II. DISCUSSION
Local Rule 83.3(a) permits the recording and broadcast of
courtroom proceedings in certain circumstances expressly
enumerated in the Local Rules, see D. Mass. Local R. 83.3(a)-(d),
or "by order of the court." As written, this residual clause
does not carry any limitation; instead, it assigns the decision
to permit recording or broadcast to the discretion of the
presiding district court judge.
The Court believes that the upcoming motion hearing is an
instance where recording and broadcast falls squarely within the
public interest. The First Amendment suggests that court
5
proceedings be open to the public "whenever practicable." In re
Zyprexa Products Liability Litigation, 2008 WL 1809659 (E.D.N.Y.
Mar. 4, 2008) (permitting recording of district court
proceedings). As the Supreme Court noted in Craig v. Harney, 331
U.S. 367, 374 (1947), "[a] trial is a public event. What
transpires in the courtroom is public property."
"Public" today has a new resonance, especially in this case.
The claims and issues at stake involve the internet, file-sharing
practices, and digital copyright protections. The Defendants are
primarily members of a generation that has grown up with the
internet, who get their news from it, rather than from the
traditional forms of public communication, such as newspapers or
television. Indeed, these cases have generated widespread public
attention, much of it on the internet. Under the circumstances,
the particular relief requested -- "narrowcasting" this
proceeding to a public website -- is uniquely appropriate.
The Defendant has assured the Court that the recording and
narrowcast of the January 22, 2009, hearing will be publicly
available for all non-commercial uses via the Berkman Center's
website at http://
cyber.law.harvard.edu/. The January 22, 2009,
hearing will include only oral argument by the attorneys
representing the parties -- no criminal defendants, jurors, or
6
witnesses will be exposed to public view. In fact, CVN intends
to use unobtrusive cameras already installed in the courtroom,
diminishing the likelihood that the recording will disrupt the
Court's business. The coverage will be gavel-to-gavel, meaning
that the Berkman Center will not edit the videostream in any way.
Given the nature of this particular hearing, few factors counsel
against allowing the proceeding to be broadcast, while the public
has much to gain.
The Court recognizes that, despite a three-year experiment
with courtroom cameras in the 1990s, the Judicial Conference
continues to oppose the recording of district court proceedings
in all but a narrow set of circumstances. See Administrative
Office of the U.S. Courts, Guide to Judiciary Polices and
Procedures, Vol. 1, Ch. 3, Part E.3. The Conference permits the
broadcast of oral arguments in Courts of Appeals, at the
discretion of the Court, but not analogous proceedings -- oral
7
arguments -- in district court. See News Release: Judicial
Conference Acts on Cameras in Court, Administrative Office of the
U.S. Courts, Mar. 12, 1996 (document # 720-14). Although
entitled to considerable weight, the position of the Judicial
Conference opposing televised district court proceedings does not
bind this Court. See, e.g., United States v. Merric, 166 F.3d
406, 412 (1st Cir. 1999) (noting that "the views of the Judicial
Conference are entitled to respectful attention," but are binding
only on a few matters); In re Cargill, Inc., 66 F.3d 1256, 1267
(1st Cir. 1995).
Pursuant to their own local rules, a number of individual
district court judges in the Eastern and Southern District of New
York have allowed specific hearings in civil cases to be recorded
and broadcast since at least 1996. See E.D.N.Y. & S.D.N.Y. Civ.
R. 1.8; Marisol A. v. Giuliani, 929 F. Supp. 660 (S.D.N.Y. 1996)
(Ward, J.); Sigmon v. Parker Chapin Flattau & Klimpl, 937 F.
Supp. 335 (S.D.N.Y. 1996) (Leisure, J.); Katzman v. Victoria's
Secret Catalogue, 923 F. Supp. 580 (S.D.N.Y. 1996) (Sweet, J.);
Hamilton v. Accu-Tek, 942 F. Supp. 136 (E.D.N.Y. 1996)
(Weinstein, J.); GVA Market Neutral Master Limited v. Veras
Capital Partners, No. 07-cv-00519 (S.D.N.Y.); CCM Pathfinder
Pompano Bay, LLC v. Compass Financial Partners LLC, et. al., No.
08-cv-05258 (S.D.N.Y.); In re Zyprexa Products Liability
Litigation, 2008 WL 1809659 (E.D.N.Y.) (Weinstein, J.).
8
Indeed, after the Marisol case, in which Judge Ward
permitted CVN coverage of a proceeding, the Judicial Conference
approved a resolution in March 1996 "to strongly urge each
circuit judicial council to adopt" Conference policy banning
cameras, and to "abrogate any rules of court" that conflict with
that policy. See 929 F. Supp. 660; News Release: Judicial
Conference Acts on Cameras in Court, Administrative Office of the
U.S. Courts, Mar. 12, 1996 (document # 720-14). To date, no
circuit judicial council -- including the First Circuit judicial
council which binds this Court -- has done so.
Nothing indicates that the integrity of the proceedings or
the interests of any party have been prejudiced by the use of
courtroom cameras in these cases. The Plaintiffs' concern here
that jurors will be prejudiced by internet coverage is specious.
The judicial system relies on voir dire to ferret out those
jurors who have followed a case, whether it be through
newspapers, television, or now, the internet. The judicial
system likewise relies on the good faith of jurors not to perform
research about a case in any media format or other medium. Going
forward, the Court will add an admonition about the internet to
9
address concerns about juror exposure to previous coverage of the
case, of whatever variety.
Under these circumstances and with the discretion afforded
by Local Rule 83.3(a), the Court believes it is fully appropriate
to allow the public a wider window into the judicial proceeding
at hand.
III. CONCLUSION
Based on the foregoing analysis, the Court GRANTS the
Defendant's motion to allow CVN to record and narrowcast the
January 22, 2009 hearing (document # 718), subject to the
following conditions:
1. This Order is limited to the January 22, 2009, hearing; the
Court will address any further "narrowcasting" should that
be necessary;
2. The CVN narrowcast is the only recording of the hearing
allowed -- no other private recording or broadcast, whether
audio or visual, is permitted;
3. The Berkman Center for Internet and Society will act as a
subscriber to the CVN narrowcast and will make the recording
publicly available for all non-commercial uses via its
website;
4. CVN will use the cameras already installed in Judge
Gertner's courtroom (Courtroom 2), as indicated by Attorney
Nesson at the January 13, 2009, telephonic conference;
5. The "narrowcast" will be gavel-to-gavel, with no editing by
CVN or the parties; and
6. CVN will immediately contact Chris Gross, the Court's IT
specialist, at chris_gross at mad.uscourts.gov to coordinate
the narrowcast feed from the courtroom cameras.
SO ORDERED.
10
Date: January 14, 2009
/s/Nancy Gertner
NANCY GERTNER, U.S.D.C.
1
It is possible the Plaintiffs have now changed their minds about the
virtues of this strategy. See Sarah McBride and Ethan Smith, Music Industry
to Abandon Mass Suits, Wall St. J., Dec. 19, 2008, available at
http://online.wsj.com/
article/SB122966038836021137.html.
2
Local Rule 83.3 provides in relevant part:
(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. . . .
(b) Voice Recordings by Court Reporters. Official court
reporters are not prohibited by section (a) from making
voice recordings for the sole purpose of discharging their
official duties. No recording made for that purpose shall be
used for any other purpose by any person.
(c) The court may permit (1) the use of electronic or
photographic means for the preservation of evidence or the
perpetuation of a record, and (2) the broadcasting,
televising, recording, or photographing of investitive,
ceremonial, or naturalization proceedings.
(d) The use of dictation equipment is permitted in the
clerk's office of this court by persons reviewing files in
that office.
Effective September 1, 1990.
3Moreover, the Court does not believe that prospective jurors are any
more likely to be prejudiced by allowing the hearing to be recorded and made
publicly available. As the Court has noted, this case has already generated
widespread media attention quite aside from any courtroom recording. Should
the case reach trial, jurors will be instructed to refrain from conducting any
outside research into the litigation, exactly as they are already prohibited
from accessing media accounts or other external sources of information.
4 The Judicial Conference policy statement only permits recording and
broadcasting during "investitive, naturalization, or other ceremonial
proceedings," or for (1) the presentation of evidence; (2) the perpetuation of
the record of proceedings; (3) security purposes; (4) other purposes of
judicial administration; and (5) the photographing, recording or broadcasting
of appellate arguments. The policy statement appears to all but disregard the
substantial similarity between appellate argument, which it allows to be
broadcast, and a motion hearing before the district court. Both involve only
oral argument by counsel; neither type of proceeding risks placing jurors,
witnesses, or criminal defendants before courtroom cameras.
5 Much to the contrary, Congress has recently taken up legislation that
would reverse Judicial Conference policy and allow cameras in the courtroom on
a far more routine basis. See Sunshine in the Courtroom Act of 2008, S. 352,
110th Cong. (as reported by the S. Comm. on the Judiciary); Sunshine in the
Courtroom Act of 2007, H.R. 2128, 110th Cong. (as reported by the H. Comm. on
the Judiciary).
11
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| Authored by: Erwan on Saturday, January 17 2009 @ 03:16 AM EST |
If any
---
Erwan[ Reply to This | # ]
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| Authored by: Erwan on Saturday, January 17 2009 @ 03:17 AM EST |
If this is the new thread title.
---
Erwan[ Reply to This | # ]
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| Authored by: Erwan on Saturday, January 17 2009 @ 03:18 AM EST |
As usual.
---
Erwan[ Reply to This | # ]
|
- OT, the Off Topic Thread - Authored by: Anonymous on Saturday, January 17 2009 @ 09:46 AM EST
- Sun Open Web Server a.k.a 'Netscape Enterprise Server' now Open Source [BSD] - Authored by: Anonymous on Saturday, January 17 2009 @ 10:47 AM EST
- Is it time for sanctions yet? - Authored by: pcrooker on Saturday, January 17 2009 @ 05:55 PM EST
- PLEASE FIX THE RSS FEED - Authored by: Anonymous on Saturday, January 17 2009 @ 06:26 PM EST
- An interesting form of paternity costs - Authored by: Anonymous on Monday, January 19 2009 @ 11:02 AM EST
- Bill Gates' Father.... - Authored by: Anonymous on Monday, January 19 2009 @ 11:49 AM EST
- Way off topic - Authored by: Anonymous on Monday, January 19 2009 @ 12:27 PM EST
- SCO BK hearing? - Authored by: Anonymous on Monday, January 19 2009 @ 12:50 PM EST
- OT, the Off Topic Thread - Authored by: Anonymous on Monday, January 19 2009 @ 02:34 PM EST
- RIAA - without prejudice - pulls out of John Doe cases involving college students - Authored by: Anonymous on Monday, January 19 2009 @ 06:50 PM EST
- Change - Centuries ago and today - Authored by: SpaceLifeForm on Tuesday, January 20 2009 @ 02:12 AM EST
- Now th EU has IBM in its sights. - Authored by: Anonymous on Tuesday, January 20 2009 @ 05:44 AM EST
- Other than the big four, music sales are doing well - Authored by: Anonymous on Tuesday, January 20 2009 @ 07:40 AM EST
- time to start another United Linux consortium - Authored by: emacsuser on Tuesday, January 20 2009 @ 12:53 PM EST
- Did Comcast manage to traffic themselves into a hole? - Authored by: SpaceLifeForm on Tuesday, January 20 2009 @ 03:10 PM EST
- Prince Alwaleed bin Talal no longer interested in SNCP and SCO? - Authored by: SpaceLifeForm on Tuesday, January 20 2009 @ 05:16 PM EST
- How to purchase HP 2140 Mininote with Linux? - Authored by: Anonymous on Tuesday, January 20 2009 @ 09:29 PM EST
- Justice, Chinese style..... - Authored by: tiger99 on Thursday, January 22 2009 @ 07:50 AM EST
- Ballmer's e-mail to employees regarding layoffs: up to 3k heads to blue screen in next 18 months - Authored by: Anonymous on Thursday, January 22 2009 @ 01:27 PM EST
- Calls for open source government - Authored by: Anonymous on Thursday, January 22 2009 @ 06:13 PM EST
- EFF Patent Busting Project wins another battle - Authored by: SpaceLifeForm on Thursday, January 22 2009 @ 07:56 PM EST
- Get the EU on Microsoft for NETBOOK RESTRAIN OF TRADE - Authored by: Anonymous on Friday, January 23 2009 @ 12:09 PM EST
- Canada Competition Bureau says standards must be free of patent-encumbrance - Authored by: Anonymous on Friday, January 23 2009 @ 05:34 PM EST
- Linux to spend eternity in shadow of 'little blue E' - Authored by: Anonymous on Monday, January 26 2009 @ 06:00 PM EST
- Microsoft execs inadvertly become Linux evangalists - Authored by: Anonymous on Monday, January 26 2009 @ 06:40 PM EST
- SCO PR: Big price increase! - Authored by: joef on Tuesday, January 27 2009 @ 10:07 AM EST
- Equipment Manuals and Copyright - Authored by: mcinsand on Tuesday, January 27 2009 @ 10:53 AM EST
- Papermaster and IBM settle - Authored by: SpaceLifeForm on Tuesday, January 27 2009 @ 06:24 PM EST
- Interesting ruling. - Authored by: Anonymous on Wednesday, January 28 2009 @ 10:54 AM EST
- How the US Lost Its China Complaint On IP - Authored by: Anonymous on Wednesday, January 28 2009 @ 04:17 PM EST
- Transmeta patents trolled, company dies - Authored by: Anonymous on Friday, January 30 2009 @ 09:36 AM EST
- OT, the Off Topic Thread - Authored by: Anonymous on Friday, January 30 2009 @ 02:51 PM EST
| |
| Authored by: Anonymous on Saturday, January 17 2009 @ 04:10 AM EST |
Pamela, you are so cool!
*muah*
[ Reply to This | # ]
|
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| Authored by: Aladdin Sane on Saturday, January 17 2009 @ 05:45 AM EST |
Nothing in the local rules of the District Court of Massachusetts,
the policies of the Judicial Council for the First Circuit, life, or logic
suggests that this motion should be denied.
The
Plaintiffs' concern here that jurors will be prejudiced by internet coverage is
specious.
Sounds like the Judge knows what she wants to happen.
Sounds like she gets it. The RIAA is scrambling for rocks to crawl back under,
I imagine. Light of day too much for those vampires, I guess (mixing my
metaphors, I know).
---
"Then you admit confirming not denying you
ever said that?"
"NO! ... I mean Yes! WHAT?"
"I'll put `maybe.'"
--Bloom County [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 05:59 AM EST |
It's great to have you back, but please don't get caught up in this like you did
with SCOX. Treat it like the hobby the original Groklaw was supposed to be.
30-60 minutes 3 times a week is plenty for a hobby. It's not like you're
knitting in front of the telly.
So please, for your and our sakes, take it easy.
Richard from EnZed.
p.s.
The knitting comment is not intended to be a "poor little woman"
crack. Some of the finest knitting I have ever seen has been done by men.[ Reply to This | # ]
|
- Pamela, if I may be so bold - Authored by: Steve Martin on Saturday, January 17 2009 @ 06:49 AM EST
- Pamela, if I may be so bold - AGREED - Authored by: gjleger on Saturday, January 17 2009 @ 08:08 AM EST
- However, a work of passion is never really work, is it? - Authored by: Anonymous on Saturday, January 17 2009 @ 09:48 AM EST
- Pamela, if I may be so bold - Authored by: rsteinmetz70112 on Saturday, January 17 2009 @ 11:36 AM EST
- Hear hear (n/t) - Authored by: Anonymous on Saturday, January 17 2009 @ 04:52 PM EST
- The toughest retired sailors knit and make knives. - Authored by: Anonymous on Sunday, January 18 2009 @ 01:58 AM EST
- The finest knitting I have ever seen has been done by men. - Authored by: Anonymous on Monday, January 19 2009 @ 10:19 AM EST
| |
| Authored by: elderlycynic on Saturday, January 17 2009 @ 07:36 AM EST |
This may sound off-topic, but isn't :-) And, before the
flamers start tapping at their keyboards, it's slightly
tongue-in-cheek!
Inter alia, the divine right of kings included the power of
sovereigns to impose arbitrary laws, for the purposes of
favouring some activity or group, irrespective of whether
the laws had anything to do with justice or would unfairly
discriminate against some groups.
My understanding is that this was introduced into England by
Guillaume Le Batard, waxed and waned over the centuries,
and was on the way out by the late 18th century. Of course,
by then, that power was wielded by the prime minister and not
the king.
Some colonials, of whom you may have heard, objected to
even the remnants of that sort of behaviour and set up a
breakaway state. They adopted some sort of constitution,
formally disapproving of such behaviour.
Back in the UK, the sovereign lost all de facto power and
the new concept was the "sovereignity of Parliament", but
the old characteristics of immunity from the law and the
right to be arbitrarily unjust were not dropped.
There are currently some lunatic republicans that think that
abolishing the monarchy will change this, but they never
attempt to explain why. More recently, the influence of
the European Union has moderated it, and that is bitterly
opposed by another group of lunatics who claim that the
right of parliament to be unjust is an essential freedom of
the people.
But what is happening in the breakaway republic? It seems
to be moving much closer to some sort of a hybrid between an
old-fashioned monarchy and a sovereign parliament system,
with the sovereign and parliament chosen for a limited
period by some sort of hugely expensive jamboree, followed
by a popularity contest.
Unlike in some prehistoric societies, the accession of a new
sovereign is not signalled by the sacrifice of the old, but
that is a mere detail of ritual.
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 07:44 AM EST |
Hooray - thank you for explaining this one, and thank you for bringing a bit of
groklaw back!
I've been a reader for a long time, and the clear insights in many articles have
always fascinated me. This one is no exception.
I realize the value of groklaw, and the interest in preserving it, but a balance
with a few current blog entries on selected topics (like this one) and then some
effort focused on preservation would be great. My initial fear was that groklaw
would quickly turn into a museum with few readers, interesting in its own right
but not many taking the time to visit.
I also see how stressful it must have been to keep up the pace of the past few
years, and no one, let alone myself, has any right to demand that kind of
burden. So here's a thank you for the above article, and perhaps some more to
come whenever you really feel the itch to explain an issue such as this .... and
if not, well, thank you anyway for the many insightful pieces so far.[ Reply to This | # ]
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| Authored by: digger53 on Saturday, January 17 2009 @ 08:45 AM EST |
Thanks, PJ, great stuff. It had never occurred to me that there might be
constitutional questions. The $200K plus "damages" awarded on the Jammie
Thomas case for 24 songs seemed horribly excessive to me, $1M for seven
songs is grotesque beyond belief, particularly coming from Sony, the rootkit
company. Too bad that Sony didn't get hit with a proportionate penalty for
their rootkit adventure, with every CD containing it treated as an attempt to
illegally compromise at least one computer. It took maybe a 100 dollar cure
from a tech to fix/remove (or reinstall) to fix? Lets see $1M/7 *500K cds
produced (guess) = $ 71.4M * 3 (for malicious intent and/or wanton
indifference to the consequences) ... about $214M. Sounds about right to
me, and then there's the fun charges for compromising national security in
several counties. SONY's CEO, CTO and others should have to spend the rest of
their lives in prison at hard labor. Sony should be made an example of, just
like they want to make an example of this kid.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 09:46 AM EST |
PJ: "What damages or penalties are appropriate? Life in
jail for a loaf of
bread offends one's sense of simple
justice."
Another
reason to be proud, this being a
citizen! For the poor it consists in
sustaining and
preserving the wealthy in their power and their laziness.
The
poor must work for this, in presence of the majestic
quality of the law which
prohibits the wealthy as well as
the poor from sleeping under the bridges, from
begging in
the streets, and from stealing bread.
Anatole
France (Jacques-Anatole Thibault), Le Les Rouge
(The Red Lily) (1894), Pr
oject Gutenberg ed.
2003 (translated from the original
French). [ Reply to This | # ]
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| Authored by: tuxi on Saturday, January 17 2009 @ 10:12 AM EST |
First off, it's good to see you posting again.
I was confused by
your references to radio. It wasn't clear to me whether it was you or the
defendant who didn't understand that the radio stations / internet radio
stations pay royalties each time a song is played. I assume you were referring
to the defendant's view.
Perhaps this is part of the problem. The
younger generation doesn't seem to understand that radio stations must pay a
royalty each time a song is played. I think my generation got the message in
the time-shifting court cases in the late-70s to early-80s.
Don't get
me wrong, I'm all for fairness and I think the RIAA is abusing the court system.
In private discussions, I've even opined that filesharing is good for lesser
known artists. I'm not likely to pay for a CD (or even a digital download of a
single song) unless I'm familiar with the artist.
---
tuxi [ Reply to This | # ]
|
- No, the problem is you. Read the article again - Authored by: Anonymous on Saturday, January 17 2009 @ 01:40 PM EST
- Radio - Authored by: Anonymous on Saturday, January 17 2009 @ 10:11 PM EST
- Radio - Authored by: Anonymous on Monday, January 19 2009 @ 09:49 AM EST
- Radio - Authored by: Anonymous on Monday, January 19 2009 @ 03:52 PM EST
- Radio - Authored by: Anonymous on Saturday, January 24 2009 @ 01:17 AM EST
- Radio - Authored by: Anonymous on Wednesday, January 21 2009 @ 08:57 AM EST
- Radio - Authored by: Anonymous on Monday, January 19 2009 @ 04:19 PM EST
| |
| Authored by: TomWiles on Saturday, January 17 2009 @ 12:52 PM EST |
This is not a normal case, and is of fantastic interest to all of us.
What makes this different.
1. Nesson has not liked what the RIAA has been doing over the last ten years or
so, and has (probably) just been waiting for the right case to drop into his
lap.
2. Nesson has set the hook.
3. The case is in Massachusetts. I thnk that there is very little doubt that
Nesson was waiting for a case on his home turf. How would you like to be the
Judge that has one of his rulings ridiculed in a case study by the premire law
school in the nation for the next 100 years.
4. Because of 3, Nesson's interpretation of the law is likely to carry
considerable weight with the Judge.
5. How would you like to be a Judge running for re-election (in Massachusetts)
with the Harvard Law School firmly in your Opponent's court (so to say).
In the past the RIAA has been able to use its reputation, the stature of its
very expensive law firms, and political opinion to influence court proceedings
(to some extent). Nobody wants to take on a 600 pound gorilla!! I think that
the the shoe is on the other foot here. Nesson has the case he wants, on his
own turf, with a stacked deck.
This one should be fun, fun, fun.
Thank you so much P.J. for bringing this to our attention.
Tom [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 01:03 PM EST |
This reminds me of a bit of English history. In the 1300s, the church was in a
position of great power. The English populace spoke English but all the bibles
were in Latin. The populace knew they needed the clergy in order to save their
souls, and the clergy's authority was pretty-much absolute. The church had vast
quantities of land and gold.
John Wycliffe made an Englich translation of the Bible in 1382. To retain their
power, the Church made it a crime punishable by death to posess an English
translation of the Bible.
I'm sure the RIAA would love to introduce the death penalty for file sharing, of
only they could. I hope this post isn't giving them ideas.[ Reply to This | # ]
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| Authored by: Ray Beckerman on Saturday, January 17 2009 @ 01:04 PM EST |
| Great article, PJ. Just want to include update that the morons filed a petition for "mandamus OR prohibition" in the First
Circuit.... they couldn't figure out which it is. Had they gone to law school
they would have known it's a petition for prohibition. Boy are they nervous
about the public having access. ---
Best regards,
Ray
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 01:29 PM EST |
PJ said:
> Did you know that? Did you know you can get in trouble for
> publishing someone's photo or even using someone's name
> without permission?
While I understand where you are coming from, I am very much
concerned by the lack of privacy we have today.
Doubly so when the data about us being traded is compelled
from us by government.
I urge you to consider that a middle ground should exist with
regard to publishing true "facts" about someone.
Thank you
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 01:45 PM EST |
Maybe it's time to show Sony is right in one respect - the Internet *could*
damage their case if their paid-off friends start to feel the heat. Publish a
list!
How about a massive letter-writing and email-stuffing campaign to let Senator
XYZ or Critter ABC know that WE know they've been compromised - and how we
expect them to fix it (i.e., repeal the Copyright extensions such as from 1976,
abolish the DMCA, and repeal the various acts that have given police powers to
the likes of abusers like RIAA).[ Reply to This | # ]
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| Authored by: MDT on Saturday, January 17 2009 @ 01:57 PM EST |
Ray Beckerman has an article up that the RIAA has filed for a stay of motion,
and appealed the ruling.
Of course, they can't do anything without
being questionable ethically it seems. In this case, they seem to have gone
into a panic. Not only did they appeal a ruling that it appears (per Ray) they
don't have the right to appeal, but they've put in a motion for stay that's to
the wrong judge, and is malformed in the first place.
Link to Ray's Blog
---
MDT [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 05:51 PM EST |
"We're going to crucify you, as an example to others, so they'll quit ruining
our client's business."
http://www.apple.c
om/pr/library/2009/01/06itunes.html
SAN FRANCISCO—January 6,
2009—Apple® today announced several changes to the iTunes® Store
(www.itunes.com). Beginning today, all four major music labels—Universal Music
Group, Sony BMG, Warner Music Group and EMI, along with thousands of
independent labels, are now offering their music in iTunes Plus, Apple’s
DRM-free format with higher-quality 256 kbps AAC encoding for audio quality
virtually indistinguishable from the original recordings. iTunes customers can
also choose to download their favorite songs from the world’s largest music
catalog directly onto their iPhone™ 3G over their 3G network just as they do
with Wi-Fi today, for the same price as downloading to their computer. And
beginning in April, based on what the music labels charge Apple, songs on iTunes
will be available at one of three price points: 69 cents, 99 cents and
$1.29, with most albums still priced at $9.99.
(Emphasis
Added)
The real value of the downloaded music is thus revealed!!!!![ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 06:46 PM EST |
The Citizen Media Guide states:
'For example, in most states you
can be sued for publishing private facts about another person, even if those
facts are true. The term "private facts" refers to information about someone's
personal life that has not previously been revealed to the public, that is not
of legitimate public concern, and the publication of which would be offensive to
a reasonable person. This would include such things as writing about a person's
medical condition, sexual activities, or financial
troubles.'
Perfectly reasonable. But you comment on
it:
Did you know that? Did you know you can get in trouble for
publishing someone's photo or even using someone's name without permission? For
publishing certain confidential business information?
That simply
does not follow, and I think it's probably untrue in most states. Publishing an
ordinary photo or someone's name would not be "offensive to a reasonable
person". [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 17 2009 @ 06:52 PM EST |
Should you fine people a million dollars for listening to music? Don't we
all do that on the radio? What exactly is the difference?
Come, now,
we all know the difference: when a radio station broadcasts music, it has paid
some fee to the copyright holder and received permission to broadcast
it.
When you download music from a private individual's computer, you
know perfectly well that it is made available without
permission.
I don't think it helps our case to pretend that that isn't
obvious. [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, January 18 2009 @ 04:50 AM EST |
obviously you know something the rest does not.
"the rest"? I
think Groklaw has more than 2 readers.
As far as I know, in the US,
radio broadcast (AM/FM) does NOT pay any license fee to recording
companies!
Radio broadcasters in the US pay license fees to one of
two companies, ASCAP or BMI (many radio stations pay both of them). ASCAP and
BMI then divvy up the license fees among all the rights owners.
More
detail is available
here.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, January 18 2009 @ 11:27 AM EST |
So there are apparently some data items you may transmit to particular
recipients over the public Internet, and other data items you may not transmit.
And the criteria for telling the difference are somewhat obfuscated, requiring
skilled analysis from people whose time has to be paid for.
Sony should be able to tell the difference; they're a major corporation and can
afford the investment if they feel their business requires it.
How should Tenenbaum be expected to tell the difference ? He cannot afford to
pay the 'skilled people' for an opinion. Was the material labelled clearly ? Did
the label indicate who permission should be sought from ? Was the label
accurate, or is it subject to challenge as possibly over-restricting ?[ Reply to This | # ]
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| Authored by: Pierce on Sunday, January 18 2009 @ 11:32 AM EST |
Do you have any suggestions on the Preservation front? Anything that can be
updated now so that this article will not need to be reviewed
later?
What do we need to still do for the SCOX preservation? [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, January 18 2009 @ 01:55 PM EST |
IANAL, but I know what feels right and just and this is not it. So, we could all
overreact like Sony and the RIAA and just quit buying their products. That seems
like an equivalent to what they are doing to this guy. We could start today.[ Reply to This | # ]
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| Authored by: electron on Sunday, January 18 2009 @ 08:19 PM EST |
> Specifically, the defendant is asking if a law can be
> constitutional that allows civil actions by private
> entities for what are supposedly criminal matters, when
> doing so removes safeguards a criminal defendant
> would otherwise have.
Breach of copyright is not a "criminal" matter. It is indeed a civil
matter and should be prosecuted in a civil court.
Theft of a CD is indeed a criminal matter and correctly should be prosecuted by
the Crown (or American equivalent) in a criminal court.
In a criminal court the standard of proof has to be "beyond reasonable
doubt".
In a civil court no such standard of proof is required as it is merely two
parties slugging it out in public with a referee who ultimately gets to decide
who is the winner.
In order to prosecute a copyright case the plaintiff needs to be able to explain
how they became aware that a particular copyrighted work was being copied
without permission. Guesswork is not acceptable.
In New Zealand the equivalent of the RIAA are creaming themselves over the fact
that an insane law was recently past that states a plaintiff does not need to
prove in a court of Law that their copyright was infringed before they can
demand that a third party Internet Service Provider disconnect the defendant's
internet connection merely upon being accused.
This new law has not yet taken effect, and already it is being vigorously
challenged by a wide range of organisations as being contrary to the judicial
presumption of innocence until proven guilty, contrary to the Human Rights Act,
and indeed contrary to the fundamental principles that have governed the whole
body of Common Law that has been developed since the late middle ages.
In my opinion, all the law suits that are being prosecuted by the RIAA and its
cronies are in similar disregard for the precedents of Common Law and it is
symptomatic of America's sick litigious culture that they are even being
permitted to be logged in the first place!
It is my earnest hope that the new law in New Zealand is quickly repealed before
it takes effect and before the RIAA et al crow too much about it.
---
Electron
"A life? Sounds great! Do you know where I could download one?"[ Reply to This | # ]
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| Authored by: Anonymous on Monday, January 19 2009 @ 11:39 AM EST |
No sensible person would wish a $1,000,000 judgment against this young man.
In the unfortunate event that this case goes that way, it will be an opportunity
for citizens such as myself to send a message to the Music Industry by raising a
million dollars through an online public appeal, with the suggestion that the
Music Industry take that money and dump it down their own well.
Mr. Noor Alaujan is not alone in this world.
Ron, Anon[ Reply to This | # ]
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| Authored by: Alan(UK) on Monday, January 19 2009 @ 01:56 PM EST |
I remember (or think that I remember) PJ saying on Groklaw that, if asked why he
is bringing the case, the plaintive should reply to the judge that he is doing
it for the damages.
In this case, the plaintive stands no chance at all of recovering his $1000000.
So if the judge asked him why he was bringing the case, what could he say?
---
Microsoft is nailing up its own coffin from the inside.[ Reply to This | # ]
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| Authored by: SpaceLifeForm on Monday, January 19 2009 @ 02:59 PM EST |
| Link
The heart of the labels' argument
against the webcast is this:
Petitioners [the labels] are
concerned that, unlike a trial transicipt, 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.
Wow. This is not just an argument against this
particular webcast. I don't think it's an exaggeration to say that this is
actually an attack on all news coverage of court proceedings. No newspaper or
television network just prints court transcripts verbatim. Rather, they "edit"
and "splice" them into articles or broadcasts. (So do bloggers. Just try and
stop 'em.) Sometimes they may unfairly "manipulate" the facts, which should
certainly be condemned, but that's no reason to ban journalists -- professional
or amateur -- from the courtroom.
It is a strange argument on
RIAA's part. Last I checked, the court will rule based on the law and the
facts, not that
someone outside of the court may have taken statements out of
context, or that the proceedings were spliced together in some different
fashion.
What's next? Secret trials?
---
You are being MICROattacked, from various angles, in a SOFT manner. [ Reply to This | # ]
|
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| Authored by: SilverWave on Monday, January 19 2009 @ 06:11 PM EST |
hmm this wiki article reads like corporate speak...
but it does tell a story.
"There are 40 different tariffs that are available to businesses, depending
on their size and the extent to which they are using music. Without PRS for
Music, businesses wishing to use music would have to get individual permissions
for every piece of music they wanted to play. Around 350,000 businesses in the
UK have such a licence, however the following places do not currently require
one:
·In patient and treatment areas in hospitals
·Medical day centres
·Residential homes in most circumstances
·Music used in divine worship
·Civil wedding ceremonies and partnership ceremonies
·Lone and home workers[2]
"
http://en.wikipedia.org/wiki/Performing_Right_Society
---------
nice to have you back pj ;)
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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| Authored by: webster on Monday, January 19 2009 @ 06:40 PM EST |
..
The streets near the Mall are bustling already, --even more so than the
fireworks and parade on the Fourth of July. Washington is seeing an invasion
precedent only by an armistice celebration or something during the Civil War.
There have been parties too numerous to attend. One in our neighborhood was
mostly African with every NGO, diplomat, relative, businessman timing every trip
with an overlay in Washington.
The parade will be special. The President will pass providing a first live
glimpse. Then some of the finest bands in the land in one place. It will like
a Mardi Gras parade without floats and beads. They will have the best marching
bands including FAMU, Grambling, Howard, Ballou [HS] and many others. They can
only be appreciated live.
At this moment here downtown on the streets within two blocks of the parade
route there is a bustling bazaar with Inaugural stores set up weeks ago
competing with impromptu hawkers and vendors selling every kind of button,
T-Shirt, portrait and flag.
The coolest of all the T-Shirts was one purchased at a Comic Book store
depicting Obama shedding a suit a la Superman with a big "O" on his
chest. It was artistic with quality fabric and printing.
Units of military, foreign police, tourbuses cram the streets, at least a third
of which are already closed. Barricades will soon go up.
People have come to town with a vehicle or less as their lodging for the night.
The homeless and the visitors will share the storefronts tonight.
If tonight is any indication, one will have to join the crowd early to get in
the right place. Security will be tight. Let us hope they can stay in control.
On Sunday not everyone got past the security to the big concert. A mass of
people left out of the inaugural and the parade will not be happy. Neither will
the storefronts.
Despite the concerns, the mood of the masses is extremely pleasant. Everyone
here is pleased by the transition of power to such an historic figure even those
who didn't vote him in. There is hope that he will lift America and demand of
it many steps that have not been taken since 9/11.
Since the crowds are here already, one is going to have to stay the night
downtown or leave very early. This reveller will be fetched at 6 AM. He hopes
to be down there to get in the parade security zone before they close it. The
barricades are going up a half block from the office, but there will be no
refuge there. To insure a spot, one will have to hit the streets early and stay
there. Security will not allow backpacks so the old fashioned boot flasks will
be in order. One has to be prepared to quaff them at security. Ice won't be
necessary.
One of my clients works at a restaurant/bar in the parade zone. He came to
court last week with a letter from his boss pleading with the judge not to lock
him up since he would be locked up in the restaurant this week. Fortunately it
was not needed.
Wish us luck. Reports may follow. We will have a new camera.
Good and/or bad it will be a day here in Washington unlike any other.
~webster~[ Reply to This | # ]
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| Authored by: sk43 on Tuesday, January 20 2009 @ 09:06 PM EST |
| "Televised Hearing Adjourned to February 24th, Judge says RIAA objections relate
not to "Whether" but "How" Hearing Should be Televised"
Link [ Reply to This | # ]
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| Authored by: LuYu on Friday, January 23 2009 @ 04:33 AM EST |
Let me begin by saying that I am ecstatic that you, PJ, have begun posting
again. I am very happy that you could not resist. I am also happy that some
news picks have been added. Your choices of news are always informative and
interesting. I hope you find somebody to take over their selection while you
are busy with other things.
I have been explaining why the internet
generation and even adults who grew up with copyright cannot get their heads
around it for a while, but it still looks like my idea too directly contradicts
our corporate education -- or indoctrination -- for most people to accept. The
simple fact is that since 1978, when the 1976 Copyright Act took effect,
copyright has been violating the Constitutionally guaranteed right to Free
Speech enshrined in the First Amendment.
How could I say such a
thing?
It is very simple, actually. Before 1976, all speech was Free,
or liberated. Copyright governed a very limited class of works that were both
published and had a copyright specifically applied for. This means that the
vast majority of speech had nothing to do with copyright and that only those
works that were specifically intended to be created for profit were covered by
copyright. Copyrights were like patents, and the works they covered were
specifically documented and -- this is important -- archived by the government
when the copyright was granted.
In 1976, this all changed. The act
granted fee free exclusive rights to all works "fixed in a tangible medium".
The definition of "tangible medium" can be argued, but this was a geographic
shift in both the realms of copyright and Free Speech. Copyright went from
covering only certain written works intended for mass publication to covering
all recorded information whether or not it was intended for publication or sale.
This is a night and day difference.
Before 1978 (when the act took
effect), only a person or legal entity in possession of a copyright certificate
governing a specific work which was on file at some government office could make
a claim. There was evidence, a paper trail.
Since 1978, anyone can
make a claim at any time whether or not the claim has any merit, and the courts
must hear it. There is no copy of the information anywhere that the government
can use as evidence of the claim. There is no certificate proving that a given
set of information was created by any specific individual. Assuming that people
only make claims for information they believe to have created -- and this is a
massive stretch considering a random individual would suffer very small
penalties for claiming he created any or all of the works of another -- but
assuming so nonetheless, all claims regardless of merit have to be treated as
legitimate by the courts. This is especially true for well funded legal
entities. There is no evidence to contradict frivolous claims.
The
RIAA's "file sharing" lawsuits are a perfect example of this: To date, not one
suit has been successful. It is not even certain that "file sharing" activities
are legally acts of infringement (although many people assume so). Remember,
the RIAA has never sued anyone for downloading files. All of the court
claims to date have been for uploading -- regardless of what they say to
the press. However, thousands of people have paid thousands or tens of
thousands of dollars each in settlements over these unproven claims. There are
numerous cases in which the RIAA's claims were wrong or even impossible or the
RIAA's sponsors were not the copyright holders of the works in question, but the
RIAA, to date, has not even been warned -- not to mention sanctioned -- by the
courts to cease such behaviour.
Enter the internet and the gradual
digitisation of communications technology world wide, and the combination should
be obvious. All information that passes over the internet is cached in hundreds
of servers. This means all IM messages, all posts on web pages, all email
messages, and even all phone calls are written to disk and therefore "fixed in a
tangible medium". This also means that friends or relatives or co-workers could
literally sue you and win if you repeated what they said in a phone
conversation. This also means that if you sing a song over Skype, you are
committing infringement by creating an unauthorised derivative work.
A
few years ago, no one would have thought to put a copyright notice on a letter
or considered that something they said to a friend was copyrighted. Now, all
speech is up for grabs. Who said what first? God knows. There is no way to
tell. But we now live in a world where all speech -- except for the rapidly
dwindling arena of interpersonal, real world, face to face communication -- is
governed by copyright and is therefore non-Free. As society becomes more
connected, more speech falls under the shadow of copyright and its excessive
penalties.
In short, copyright used to cover a very limited set of
creative works. Now copyright covers nearly all speech. This is what the
businessmen call a sea change. And this is where copyright now comes in direct
conflict with the Constitution of the United States. All speech is becoming
data. All data has always been speech. How can speech be Free in a world
where all speech is "owned"?
But the important questions
are bigger than the parties, namely, if there is a real problem -- and the
plaintiffs think there is, because the music industry feels like its business is
circling the drain and in their minds folks like Joel who file share are the
reason why -- what do you do about it?
I think anyone reading
any of my posts over the last few years would know what I think about it. The
record industry is just crying over spilled milk, but the spillage was
inevitable. CDs were products, and information is speech. Now that the speech
has been freed from the physical medium, the record industry owns
nothing. They cannot claim to "own" files on peoples computers any
more than they could claim to "own" CDs in a person's house. All their court
claims are centred around the idea that people are uploading music
(distributing) to others while all their public claims are related to
downloading music (unlawful access, which has penalties that are not worth their
time). So, the record companies a) own nothing, and b) are lying to the press.
They have no position at all whatsoever. The only question is: How long will
it take the courts to see that these crooks, the record industry, are abusing
the legal system to steal from people and flout the Constitution and everything
it stands for?
Before anyone gives me some large helping of animal
dung over the concept that music is not speech, please consider again. Most
music has words. Would you also claim that poems are not speech? In addition
to this, music communicates emotions that words simply cannot. Music is a
language unto itself, but a language nonetheless. The idea that music is
"entertainment" and therefore "not speech" is an affront to the First Amendment
and everything it stands for.
It is a Right to sing a serenade
to one's lover and put it on Youtube. It is a Right to quote whatever
book has captured one's fancy in an IM conversation. It is one's Right
to transform one's music, movies, books or whatever one pleases into whatever
digital format one wants in order to make it more portable or convenient. It is
a Right to access any information at any time without asking permission
or paying to do so.
It is time for the RIAA to apologise for
attempting to attenuate the Rights of the People of the US. It is time
for the RIAA to pay back all the victims of its legal witch hunt. The
government of the USA was instituted precisely for the purpose of defending the
people from these sorts of threats. When is the RIAA going to be punished for
its attack on the People of the US, its flagrant disrespect for the
Constitution, and its extended con campaign to swindle public
officials?
---
"Proprietary software is an antisocial practice."
-- Richard M. Stallman [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 23 2009 @ 07:05 AM EST |
You forget that the older generation invented file sharing. Many of us are mad
as expletive deleted over the way the RIAA members have locked up our
generations music after the original artists sold their rights for eating money
many years ago. Even the "oldies" playlist for the radio is a few
hundred songs out of thousands. Do not count us as supporting the RIAA point of
view. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, January 23 2009 @ 11:16 AM EST |
Slashdot has a link to an article
http://recordingindustryvspeople.blogspot.com/2009_01_01_archive.html#7676677252
338471769
and the RIAA apparently threatened Law Profesor Charles
Nesson with sactions, etc.
So the question to the assembled masses of wisdom is
whether the good professor went out of order with the
Motion to Compel?
The RIAA document seems to say that there are multiple
jurisdictional and procedural probless
with the motion and that they are seeking damages because
of the Prof's tactics.
What say you all?
I'm hoping to learn something here!
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, January 24 2009 @ 04:56 PM EST |
The judge order SCO and AZ to present plans for going
forward with the trial on Jan 16.
I have not heard anything.
Did either side file the papers? If not, what will the penalty be?
Dennis H
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, January 26 2009 @ 07:54 AM EST |
I was looking at the bankruptcy timeline, and the latest filings have links next
to them titled "Article". It looks like they are all linking to a single
article:
http://groklaw.net/article.php?story=20090115192818278
When I click on the link to go to the article, I get a page that
says:
Access Denied
You do not have access to view
this story. This could be because you aren't a member of Groklaw. Please become
a member of Groklaw to receive full membership access!
When I
click on the link to join Groklaw, I get a page that
says:
Sorry, creation of new accounts has been temporarily
disabled
I'm stuck. How can I get access to a members only
article if the creation of new accounts has been disabled?[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 28 2009 @ 02:46 AM EST |
| Did they finally get her?
My heart stopped before thinking that there must be
many Pamela Joneses in the world.
Identity of victim in Cedar Rapids fire
released
Said no matter who the victim. [ Reply to This | # ]
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