Radiohead’s Message in Boston File-Sharing Battle: “You and Whose Army?”
Radiohead always has a show or two in the Boston area on every international tour, and I’ve seen and thoroughly enjoyed them here (among other places) more than once. So I was particularly excited to hear that we may be treated to a free spoken-word performance from Radiohead manager Brian Message in our neighborhood federal district court later this year.
Yes, word is that the first major band to use file-sharing as a business model1 has agreed to step up on behalf of the defense in the whole Sony (et al) v. Joel Tenenbaum (et 100+) mess. I would have preferred to see Tchocky himself personally called to the stand to quietly mumble the opinion of the collective into the mic, but it’s still nice to see that the band is willing to send a consistent Message on this issue.2 Even non-fans have to acknowledge that everything is in its right place on this one.
And this six-ring circus of a trial already had just about everything that regular court-watchers like to see even before the single best quasi-mainstream international rock and/or roll band to break out in my lifetime got involved. There’s the modest and likable lead defendant and his sympathetic Josef K.-style predicament, the federal judge with an unusual willingness to extrajudicially engage3 the media, and the colorful, ‘radically transparent’ lead attorney who has teamed up with a plucky cadre of Harvard Law students with their own family squabbles to face the veritable firehose of overpriced lawyering available on demand to the American music industry. (And more! So much more!)
Oh, and this might finally be the case that will call the industry out for its unrelenting and shamefully disproportionate civil prosecutions of casual downloaders.4 So there’s that.
Joel Tenenbaum allegedly obtained and shared out seven (7) MP3 audio files in 2003 at the age of sixteen, for which the Recording Industry Association of America (”RIAA”) subsequently demanded its pound of flesh in the form of $12,000. Tenenbaum, now a student at Boston University, has been fighting the case ever since.
For as personally interested as I may have been in the subject matter, the case didn’t present any appellate issues until January, when District Court Judge Nancy Gertner sent the plaintiffs into myxomatotic spasms by granting Tenenbaum’s request to permit a live audio-visual webcast of the proceedings to be streamed through a non-profit website.
And then it got weird.
Judge Gertner subsequently realized that neither party had mentioned an obscure 1996 local court order regulating the use of cameras in the courtroom in their initial arguments, and strongly suggested that the plaintiffs further brief the issue in a motion to reconsider, for which she set a filing deadline. In a puzzling “notice” filed with the court soon after this deadline had passed, the plaintiffs stated their intent to ignore the judge’s request and take the issue up with the First Circuit in order to “resolve the broadcasting issue expeditiously without additional briefing or further appeals.”5
Why go running to the First Circuit? Because the plaintiffs had already sought review from the First of the judge’s order permitting the use of cameras back before anyone had realized that there was already a rule about the use of cameras. This was done by way of something they called a “Petition for Writ of Mandamus or Prohibition.”6 As Ray Beckerman notes, it appears that a writ of prohibition was actually what they were after in this context—in spite of the confusing title and the text of the petition itself, which repeatedly refers to mandamus as the sole form of relief sought. Additional briefs were filed in support of this further appeal (so much for that theory, I guess), and oral argument on this issue has been scheduled for tomorrow, April 8th.
This wacky procedural sideshow was so entertaining that I just about forgot that the actual subject of this dispute—worldwide, instantaneous dissemination of federal courtroom proceedings over the Internet—is unprecedented, at least as far as anyone I’ve read on this so far seems to know. These arguments should be available online in the next couple of days, so more then.
- Harvey Danger actually did it first, not that anyone noticed. [↩]
- As it were. [↩]
- And even occasionally join the ranks of… [↩]
- Maybe. [↩]
- In the absence of further explanation, this justification alone seems both totally oxymoronic and… well, the other kind, as well as more than a little rude. But this thing was already such a mess by this point that no doubt this course of action made sense to someone. [↩]
- Given that these two forms of relief are both distinct and definitionally antonymical, not simply requesting one or the other of them is kind of like asking your waitress for either a veggie platter or a triple cheeseburger, and leaving it up to her which one to actually serve you. [↩]