The recording industry vs. free speech

This past week, US District Judge Nancy Gertner granted the industry's request to postpone the trial, originally scheduled to begin January 22, until February 24.


What's the best way to stop illegal activity? Common sense says to show potential perpetrators the consequences. The US recording industry, in attempting to block the free public webcast of its courtroom proceedings against Joel Tenenbaum, a Boston University grad student accused of illegally downloading music, apparently disagrees.

This past week, US District Judge Nancy Gertner granted the industry's request to postpone the trial, originally scheduled to begin January 22, until February 24. A decision to allow unrestricted online viewing — a potential first for the federal court in Boston — now rests with a three-judge panel in the First Circuit Court of Appeals. According to court documents, the plaintiffs, five of the nation's largest record companies, are worried that downloads of the court proceedings could be edited "by any reasonably tech-savvy individual."

"Even without improper modification," the companies argue, "statements may be taken out of context, spliced together with other statements and rebroadcast as if it were an accurate transcript." In other words, the record execs oppose public viewing of the proceedings because a basement-dwelling YouTube mash-up artist might manipulate the footage and turn an industry lawyer into the next viral video star. The horror!

But is this the real reason for the industry's opposition to webcasting? Even Judge Gertner noted that the opposition was "curious." The Recording Industry Association of America (RIAA) recognizes that prosecuting every mp3 pirate would be impossible, so its legal fishing expedition — which has netted more than 30,000 downloaders in five years — intends to intimidate and deter by example.

"Their strategy effectively relies on the publicity resulting from this litigation," Gertner wrote in her January 14 decision to allow Courtroom View Network to provide the webcast, which would then be streamed live on the Web site of the Berkman Center for Internet & Society at Harvard: Law professor and Berkman Center co-founder Charles Nesson is representing Tenenbaum.)

But an RIAA spokesperson told the HarvardCrimson that webcasting would only promote the "pure theatrics" of Nesson's "academic exercise." It seems the industry would rather challenge Nesson's credibility than his claims.

Regardless of one's personal feelings toward the ethics of music downloading, it's in the interest of both parties to have the proceedings publicly broadcast. And what better platform than the Internet? A large percentage of potential trial viewers, one can be sure, have the downloading software du jour and are actively ripping songs off the Net. From the industry's standpoint, exposing them to the possible ramifications could go a long way in its "deterrence" strategy.

Perhaps the recording industry likes the pseudo-anonymity of its current approach. (The RIAA, by the way, publicly announced an "end" to this scorched-earth litigation campaign in December. It has continued, though, with current cases, and it has even filed new complaints. One was filed against a Canton woman a week after the RIAA's announcement.) Rather than actually seeing a defendant in court pitted against the industry's stuffed suits, the vague notion that it could happen to you is more fear-inducing. Perhaps, the industry figures, too much sunlight will indeed be a disinfectant — and its dubious legal approach is a germ.

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