{"id":647,"date":"2009-01-18T07:20:06","date_gmt":"2009-01-18T12:20:06","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/nesson\/?p=647"},"modified":"2009-01-21T08:15:29","modified_gmt":"2009-01-21T13:15:29","slug":"riaas-appeal","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/nesson\/2009\/01\/18\/riaas-appeal\/","title":{"rendered":"riaa’s appeal"},"content":{"rendered":"

\"\"<\/a>
\n(thanks ethan<\/a>)
\nF. The District Court\u2019s Order Will Harm Petitioners by Promoting
\nthe Defendant\u2019s Position to the General Public and the Potential
\nJury Pool.<\/strong>
\nThere are additional defects in the district court\u2019s Order which only serve to
\nmagnify the harm the Petitioners will likely suffer. The district court bases its
\ndecision to allow a broadcast of the proceedings upon a conclusion that there is a
\npublic interest in the underlying litigation and that broadcasting the \u201cgavel to
\ngavel\u201d proceedings over the internet will somehow serve as a public benefit\u2014
\n\u201cespecially via a medium so carefully attuned to the Internet Generation captivated
\nby these file-sharing lawsuits.\u201d See Order at 4. But the district court\u2019s chosen
\nmeans to achieve this so called \u201cpublic benefit\u201d is deeply flawed\u2014indeed it is a
\nmeans that appears specifically designed to benefit the Defendant and his counsel
\nto the detriment of Petitioners.
\n23
\nFirst, the district court has elected to use the Berkman Center\u2014an entity that
\nwas founded by and is currently co-directed by Mr. Tenenbaum\u2019s counsel\u2014as the
\nexclusive source for the public to view the proposed broadcast. As the district
\ncourt likely knows, Berkman Center\u2019s website contains a wide variety of material
\nthat is harshly critical of Petitioners and the proceedings in the underlying
\nlitigation. See, e.g.,
\nhttp:\/\/blogs.law.harvard.edu \/cyberone\/2008\/11\/03\/in-plainenglish-quashing-subpoenas
\n (video discussion erroneously accusing the Petitioners
\nof misusing the discovery process in an effort to \u201cvictimize Joel\u201d);
\nhttp:\/\/blogs.law.harvard.edu\/cyberone\/category\/riaa (lengthy blog purporting to
\ndescribe the district court litigation);
\nhttp:\/\/blogs.law.harvard.edu\/mediaberkman\/2008\/12\/02\/radio-berkman-the-pay-us-hotline-fines-and-the-riaa (recorded
\ninterview with Mr. Tenenbaum and his defense counsel regarding the litigation and
\nadvocating on behalf of Mr. Tenenbaum\u2019s legal position). As discussed below,
\nmuch of that material misrepresents the actual underlying facts of the case. Id.
\nThe Berkman Center\u2019s website even includes a link to twitter.com, through which
\nusers can access a website entitled \u201cJoel Fights Back\u201d which is actively soliciting
\ndonations to fund Mr. Tenenbaum\u2019s legal costs in connection with this matter. See
\nwww.joelfightsback.com. Accordingly, in the name of \u201cpublic interest\u201d, the
\ndistrict court has directed the general public to a website replete with propaganda
\nregarding the Defendant\u2019s position in connection with this case, and that is
\n24
\nspecifically designed to promote Defendant\u2019s interests in this case. Under these
\ncircumstances, it is unclear how the court\u2019s January 14, 2009 Order in any way
\nadvances the \u201cpublic interest.\u201d To the contrary, by electing to expand selectively
\nthe district court\u2019s proceedings into a forum that is plainly sympathetic and
\nsupportive of the Defendant in this case, the Order creates a serious risk of
\nunfairly infecting the pool from which the jury in this case will be selected.
\nIndeed, by issuing an order designating the Berkman Center\u2019s website\u2014a
\nwebsite replete with information that is openly antagonistic to the Plaintiffs\u2019 legal
\nposition in this case\u2014as the exclusive means by which the general public can
\neducate itself about these proceedings, the district court has already provoked a
\nrash of publicity directing the public to the Berkman Center\u2019s website. See Order
\nat 10; Federal Judge Orders Groundbreaking Webcast of Hearing, The Boston
\nGlobe, pages A1, A12 (January 15, 2009) (hereinafter \u201cGlobe Article\u201d) (stating
\nthat \u201cCourtroom View Network will “narrowcast” the hearing in its entirety to the
\nwebsite of the Berkman Center, which is open to the public\u201d); In Internet First,
\nRIAA File Sharing Hearing to Be Webcast, Wired.com (January 14, 2009)
\n(hereinafter \u201cWired Article\u201d) (explaining that \u201c[t]he internet feed will be provided
\nby Courtroom View Network and will be funneled to the Berkman Center for
\nInternet and Society at Harvard Law School, which will broadcast the hearing
\nlive\u201d). Much of this new publicity repeats various misrepresentations that are
\n25
\navailable through the Berkman Center\u2019s website. See, e.g., Wired Article (stating
\nthat \u201cthe RIAA seeks $1 million for the seven songs Tenenbaum downloaded in
\n2004\u201d when in fact there are hundreds of sound recordings at issue in the case and
\nPetitioners have not specified the damages they are seeking); Globe Article (stating
\nthat \u201cthe RIAA sued Tenenbaum over songs it says he downloaded when he was
\nabout 17\u201d when in fact the claims in the case address conduct by the Defendant
\nthat occurred at least as recently as 2005, when the Defendant was in his mid-20s).
\nThe proposed broadcast will likely only increase the number of such inaccurate
\nreports.<\/p>\n","protected":false},"excerpt":{"rendered":"

(thanks ethan) F. The District Court\u2019s Order Will Harm Petitioners by Promoting the Defendant\u2019s Position to the General Public and the Potential Jury Pool. There are additional defects in the district court\u2019s Order which only serve to magnify the harm the Petitioners will likely suffer. The district court bases its decision to allow a broadcast […]<\/p>\n","protected":false},"author":370,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-647","post","type-post","status-publish","format-standard","hentry","category-uncategorized","p1","y2009","m01","d18","h02"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/posts\/647","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/users\/370"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/comments?post=647"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/posts\/647\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/media?parent=647"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/categories?post=647"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/nesson\/wp-json\/wp\/v2\/tags?post=647"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}