RIAA takes a stand against viral video

In RIAA v. Tenenbaum last week, Massachusetts District Court Judge Nancy Gertner approved the motion to allow the January 22 hearing to be webcast live this upcoming Thursday, against recent objections by the record labels.

The labels participating in the suit -- Sony BMG, Warner, Atlantic, Arista, and Universal Music Group -- elevated the affair to the US Court of Appeals (PDF available here) seeking a writ of mandamus against the District Court's allowance. Mandamus is the use of a higher court's discretion to block a lower court's action.

There are three issues in the labels' complaint: (1) that allowing private media to broadcast the case violates Massachusetts District Court rules, (2) that the broadcast will be shown on the Berkman Center's Web site (i.e., the defendant's site), making it unfair, and (3) broadcasting the hearing will cause irreparable harm to the plaintiffs' case.

In terms of "irreparable harm," the labels' are concerned that the video will turn viral.

"Petitioners are concerned that, unlike a trial transcription, 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 [the] Petitioner's case."

Tenenbaum's Harvard Legal counsel addressed the RIAA's notion that the broadcast on the Berkman Center's site alone is unfair.

"We are working hard to ensure that the Berkman Center is not the exclusive distributor of the content, and we welcome the RIAA's help in finding additional Web sites through which the proceedings can be viewed.  Other parties have approached and are planning to narrowcast the feed...For whatever it is worth, the Berkman Center's site links directly to the RIAA's site, whereas it does not even directly link to the Web sites the RIAA argues are prejudicial to their position."

However, the team did not comment on the RIAA's desire to block the transmission on the grounds that it could be edited or manipulated in any way after the fact.

UPDATE: This evening, District Court Judge Nancy Gertner granted the RIAA's motion to stay the broadcasting order, pending a hearing by the First Circuit court on February 24th.

According to the judge's order, "Postponing the hearing will allow the First Circuit an opportunity to fully consider the petition before it, particularly because a number of claims presented in the petition for mandamus were never raised in their current form in the district court. Indeed, several of the Plaintiffs' claims involve questions of 'how' the recording will be made and distributed and not 'whether' the hearing can be recorded under Local Rule 83.3."