Wednesday, April 08, 2009

MP3 File of First Circuit oral argument in SONY v. Tenenbaum now available online

The audio of the April 8th oral argument before the US Court of Appeals for the First Circuit in SONY BMG Music Entertainment v. Tenenbaum, on the subject of whether an oral argument in the District Court can be streamed online, is now available online, for playing or for downloading.

The argument did not deal with First Amendment issues, but focused on the wording and meaning of the District Court rule, and the legal effect to be accorded the 1st Circuit Judicial Council's 1996 resolution.

The RIAA was represented by Daniel J. Cloherty of Dwyer & Collora.

Amicus curiae CVN was represented by Jonathan Sherman of Boies, Schiller & Flexner.

Joel Tenenbaum was represented by Prof. Charles Nesson.

-MP3 File of April 8, 2009, Oral Argument in SONY BMG Music Entertainment v. Tenenbaum in 1st Circuit Court of Appeals
-Alternate enhanced volume version ready for download (unofficial-prepared by reader "Alter_Fritz")
-Collection of YouTube Links (unofficial-prepared by Slashdot reader "mariushm")

Background documents:
January 14, 2009, Order and Decision Granting Internet Television Access to January 22nd Oral Arguments
Petition for Writ of Mandamus or Prohibition
Motion for expedited consideration or stay
Case Opening Notice
January 21, 2009, order fixing briefing schedule
Amicus Curiae brief of Electronic Frontier Foundation,, Media Access Project, Internet Archive, Free Press, California First Amendment Coalition, and Ben Sheffner
Amicus Curiae Brief of Associated Press, New York Times, Courtroom Television Network, Dow Jones & Co., Gannett Co. Inc., The Hearst Corp., Incisive Media, National Public Radio, NBC Universal Inc., Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, The E.W. Scripps Co., Tribune Co., and Washington Post Digital
Opposition Brief of Joel Tenenbaum
Amicus curiae brief of CVN
RIAA Reply Brief
Order denying motion to submit amicus brief of AP, NYT, Washington Post, and other news organizations
Order granting motion to submit amicus brief by Electronic Frontier Foundation and other organizations
Order granting motion to submit amicus brief by Courtroom View Network
Order staying proceedings in part
Order scheduling April 7, 2009, oral argument in US Court of Appeals for First Circuit
February 20, 2009, Order of US Court of Appeals for the First Circuit
First Circuit Notice of Argument
Defendant's Supplemental Brief
RIAA supplemental brief

[Ed. note:

It is notoriously impossible to predict how an appeals court will rule after hearing the argument.

Being a risk taker here are my predictions as to what the ruling will be:

1. The Judicial Council Resolution is not binding.
2. The District Court rule permits a judge to allow cameras in an appropriate instance.
3. Judge Gertner’s decision to allow a narrowcast of the oral argument in question was within the exercise of a sound judicial discretion and therefore not properly subject to review on a writ of prohibition.
4. Petition denied.

They might or might not articulate standards for the factors to be taken into account by a district court judge in making such determinations.

In dictum they may (a) repudiate the notion that the internet should stand on a different footing than other news media and/or (b) make it clear that their ruling is not a carte blanche grant of authority to televise everything that goes on in this case or in any other case, but is limited to the facts presented.


Commentary & discussion:
Copyrights and Campaigns

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Shane said...

Hmm...the court seemed most interested in narrow points of law, to which the RIAA addressed its claims, though with rediculous claims about what "or by order of the court" means (nothing, according to them). The Amicus and Nelson seemed intent on broader claims and dramatic presentation, even though I think they have the stronger claim on what "or by order of the court" means and the fact that the 1st Circuit Judicial Council's 1996 resolution was not given a public comment period or disseminated and thus is not binding. I'm disappointed by the defense.

Tom said...

The volume of the MP3 file (I found) was far too low to comfortably listen to, even with volume turned all the way up.

For those who have similar problems, the freeware app of mp3gain solved it, allowing to increase it to a normal sound level.

Thanks Ray for posting the information and links!

Anonymous said...

I'm convinced the audio was so low to obscure an otherwise underwhelming oral argument by both sides. Neither side presented anything that hadn't been dealt with thoroughly in the briefs, and in the end, the petitioner's argument was the least disappointing of the two, but that's not really saying much. Any substantial points made by the respondent's litigator were totally undermined by Nesson's off-the-reservation ramblings that were not only completely inappropriate in a courtroom but totally irrelevant to the issue at hand. His time was an embarrassment and only served to work a complete disservice to his role as a supposed advocate.


T2 said...

This argument, while having nothing to do with copyright issues per se, exemplifies the gap between the RIAA's approach and that of its opponents in this and many other litigated cases: the RIAA takes a very narrow view of the letter of the law, and much of its supporting rationale relies on past practice that is far outdated; its opponents seek to apply common sense as they interpret the law in the context of today (and maybe tomorrow), as newer enabling technologies alter the context of interpretation.

It is ironic that this juxtaposition mirrors that of the parties represented by these lawyers: the old corporations who follow outdated practices and cling to the past; and youth which explores new horizons.

Maybe the RIAA's funders, the labels, should pay attention to what happened to the auto industry. Or to Jim Crow laws. Because, in effect, they are wasting their money in these litigations; money which they should be investing to nurture new business initiatives that will help them adjust to the present and future.

The RIAA and its lawyers are not dumb people. They are just unethical: they interpret their duty to their client in the narrow way in which they interpret copyright law --- "hire us and we find the legal argument to support your position, whatever it may be". Ethical counsel goes beyond this, and assists a client to seek fairness, balance, and identify what's in the client's overall best interest (in the case of a business, that includes wise business decisions). Attorneys (usually) have a choice in which cases/clients they take, and the choices they make say a lot about a firm and its character.

Some go into law to make money; others to do what's right. The former get rich and command fear; the latter get happiness and command respect. And, when karma works - and it very often does -, the former end up losing their money in a nasty divorce and paying for their kids' rehab.

raybeckerman said...

Am I the only one that finds it interesting that the RIAA used its "local counsel" on this one, for the first time that I can remember in the history of RIAA litigation?

Anonymous said...

The "local" counsel was more than adequate in this instance. It's always a mistake to bring in a carpetbagger, unless there's just no choice. Besides, Verrilli and Perelli are now otherwise occupied.

raybeckerman said...

It has often been the case that "local counsel" were far better qualified.

Anonymous said...

This has probably been said before, but someone please take this MP3 file and share it on the normal MP3 file-sharing servers. Oh, the irony! Yes, file-sharing is far more valuable than just serving perceived pirates!

Alter_Fritz said...

I agree with Tom (April 9, 2009 5:34:00 AM EDT) regarding the volume.

That's why I took the liberty and used some Hard Limiting procedure on it (boost by 30 dB, cutof at -0.5dB i.e. I made it "louder"). No further edits -no tech savvy individual (that the RIAA lawyers argumentatively fears) here- except adding some descriptive Metadata to the file too, were made.

hth again

Anonymous said...

Ray, small typo: "there ruling" -> "their ruling"

-Grammar Stickler

raybeckerman said...

Thanks, Anonymous Grammar Stickler. Much appreciated.

Alter_Fritz said...

for those that don't like rapidshare or youtube;
Some "Anonymous Coward" [not me!] on slashdot(1) created a torrent with both files in it and uploaded it to the Piratebay(2) [oh the irony!] for those people that don't like the Plaintiff's businessmodel like "Top to bottom" content distribution systems.