Old Laws/New Media

Topic Owners: Shubham Mukherjee, Debbie Rosenbaum, Matt Sanchez

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Precis

The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

Guest

Professor Charles Nesson.

Professor Nesson is a Harvard Law School professor and a founder of the Berkman Center for Internet & Society. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

Part I. Background

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on issues in Internet communications and media. The discussion will then address the changing landscape of online music distribution to prep for the file-sharing case study to follow. The below readings inform this discussion:

Topic Introduction: Conflict between old laws and new media

• In a Brave New World, Old Laws Still Exist

Overview of attempts to apply existing copyright law to online file-sharing

• RIAA vs. The People: Five Years later
• RIAA's view on piracy & The RIAA: What we do
• Overview of Music Industry Business Model
• File sharing: It’s history, growth, and impact on the music industry.

Part II. Case study: RIAA vs. Tenenbaum

Joel Tenenbaum, a 25-year-old Physics graduate student at Boston University, was sued in 2007 by the Recording Industry Association of American (RIAA) for allegedly downloading seven music files and making them available for distribution on the KaZaA file-sharing network. Prior to the lawsuit, Joel offered to settle the dispute for $500, but the music companies rejected demanded thousands more. At trial, Joel faces statutory damages under the Copyright Act of $750 to $30,000 for each infringement, or up to $150,000 each if he is found to have engaged in a "willful violation." Tenenbaum could be forced to pay more than $1 million in damages over seven songs. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a team of students – came to Tenenbaum's defense. See How Harvard Threw Down the Gauntlet to the RIAA for a quick background on the case.

Further readings:

• Complaint against Tenenbaum
  • Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. J-01-2
  • Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. (J-01-3, -4, -5, -6, -7, -8, -9)
• More information at Joel Fights Back
• Reference: How RIAA Litigation suits work
• Reference: Ray Beckerman's Blog

RIAA's use of the Copyright Act

Some questions you might consider:

• • Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
  • Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
  • The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

RIAA's use of the Copyright Act's statutory damages framework to Internet users

Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.

• Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process
• Reference: Copyright Act's statutory damage provisions (see here and here).
• VIDEO: Arguments between Professors Nesson and Fisher

RIAA's use of Copyright Act to try and shape norms of Internet usage

• EFF article on RIAA's litigation strategy

New Technology vs. Courtroom Norms

The materials in this section cover the tension between pre-Internet courtroom traditions and rules versus modern-day expectations for transparency and instant access to which the Internet has given rise. The materials begin with a brief look at common law traditions of an open court. The materials then proceed through the constitutional underpinnings of the issue, including an examination of the last time the courts were faced with a revolutionary communications technology: television.

The materials then briefly explicate the current state of law regarding Internet in courtrooms, and conclude by examining policy considerations that arguably set the Internet apart from other broadcast media such as radio and television. By way of introduction to this entire section, participants should read the following two decisions. The first is written by Judge Nancy Gertner – an outspoken proponent of courtroom transparency – and grants Tenenbaum’s request to have his pretrial hearings webcast. The second decision is the First Circuit’s reversal of Judge Gertner.

Suggested Reading: Judge Gertner’s opinion

Suggested Reading: First Circuit reversal

Further reading: Summary of legal issues, by Morris Singer and the Tenenbaum defense team

Further listening: Oral arguments before the First Circuit

Discussion points may include considering the following tensions:

• Judge Gerner’s own expectations, as an Internet user who seems in tune with the digital native generation, about the transparency that the Internet should afford versus the local rules and Judicial Conference policy with which she is faced.
• Judge Gertner’s desire for transparency with her concern for privacy rights of juries and witnesses.
• The First Circuit’s recognition that maturing Internet technology has directly butted heads with outdated rules. Participants should especially focus on Judge Lipez’s concurrence.
• The First Circuit’s references to constitutional principles that strongly implicate, but do not directly address, Internet access to the courts.

The common law tradition of an open courtroom

The tradition of an open courtroom dates back to the medieval foundations of the common law itself. The justifications for an open trial were explicated by Enlightenment scholars, exemplified by the writings of Cesare Beccaria. His seminal work On Crimes and Punishments included a chapter that argued forcefully for public trials.

Suggested Reading: On Crimes and Punishments 15

VIDEO: Professor Nesson's thoughts on the majesty of the courts

Discussion points may include identifying from the reading the following arguments and counterarguments that carry through to modern-day debates regarding the extent to which courtrooms should be open to the Internet community.

• Greater transparency encourages judges to perform with competence and without corruption
• Greater transparency encourages truthful testimony by witnesses
• Greater transparency comports with the active and engaged citizenry fostered by a republican form of government
• Greater transparency can compromise the privacy of witnesses
• Greater transparency can denigrate the dignity and stability of the judicial system

Constitutional underpinnings

The Sixth Amendment right to a public trial

A defendant’s right to a public criminal trial is textually enshrined in the U.S. Constitution’s Sixth Amendment, which reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed ”

The Supreme Court has subsequently recognized numerous justifications for this right, including to ensure a fair and accurate adjudication, to provide the perception of fairness, to promote honest testimony by witnesses, and to satiate the public’s urge to see retribution done to wrongdoers. Estes v. Texas, 381 U.S. 532 (1965).

However, there are significant limitations to this right. Of particular importance to the issue of the Internet in the courtroom, the Supreme Court has held that allowing television cameras in the courtroom is neither constitutionally required nor constitutionally proscribed. Estes v. Texas, 381 U.S. 532 (1965); c.f. Chandler v. Florida, 449 U.S. 560 (1981). These cases will be addressed in more detail later.

Perhaps one of the most significant limitations to the sixth amendment is that it applies only to criminal trials. In the brief below, however, Professor Nesson argues that Tenenbaum should be entitled to all of the protections afforded a criminal defendant.

Suggested Reading: Sections I and II of Tenenbaum's brief

Discussion points may include:

• What are the differences between civil and criminal proceedings that may warrant the sixth amendment's distinction?
• Are you persuaded that Professor Nesson has identified one example in which the distinctions between the two proceedings are merely form over substance?

First Amendment right to access the courtroom

The Supreme Court’s First Amendment doctrine has been an important source of authority for establishing an open courtroom. In this context, the issue is framed not as the defendant’s right to a public trial, but the public’s right to witness the trial. The leading case is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555. The Court rejected the assertion that defendant’s have a right to a private trial and held that the First Amendment protects the public’s physical access to the courtroom.

Reference: Richmond Newspapers, Inc. v. Virginia

The Court declined in Richmond to decide whether the public’s right to physical access to the courts extended to civil trials. While the Supreme Court has never taken up this issue, lower courts have generally found that the Supreme Courts analysis extends to civil trials as well.

Reference: Section II of Publicker Indus. v. Cohen, 733 F.2d 1059

Discussion points for participants include:

• Does the court find that the first amendment right at issue is an absolute right, or are there limits to the public’s right to access the courts? What are those limits? How do those limits implicate the issue of allowing the public “virtual” access to the courts?
• Does the court indicate the extent to which the trial judge has independent discretion on whether other considerations outweigh the public’s first amendment right to access? How much discretion should the trial judge be given to make independent determinations on whether to allow public access?

Due Process: The courts’ first opportunity to react to a revolutionary electronic broadcast technology

The introduction and widespread acceptance of television technology among American society is in many ways analogous to the development and acceptance currently occurring with respect to the Internet, but it is in many ways different. The materials below consider the similarities and differences in more detail. For now, it is sufficient to note that the advent of television provides us with a unique snapshot of the Court’s attitude towards a new and revolutionary communication technology. It allows us to compare the Court’s attitude towards television in the 1960s with the judiciary’s attitude towards the Internet today. The first landmark case was Estes v. Texas, 381 U.S. 523 (1965). At one point in Estes, the Court directly confronts the reality that the case involves a new broadcast technology that society had yet to come to grips with. The Court takes a defensive posture:

“At the outset, the notion should be dispelled that telecasting is dangerous because it is new. It is true that our empirical knowledge of its full effect on the public, the jury, or the participants in a trial, including the judge, witnesses and lawyers, is limited. However, the nub of the question is not its newness ... "

Recommended reading: Estes v. Texas, 381 U.S. 532, 596-97 (focus on the majority opinion)

Discussion points for participants include:

• Participants should pay particular attention to Section VI, where the Court enumerates reasons for why broadcast technology interferes with a parties right to a fair trial.
• Participants should consider which of these reasons would apply equally to Internet webcast or how Internet webcast can be distinguished.

A reading of Estes makes clear that the Court was turned off by the invasive and obtrusive nature of the cameras and microphones. But technology tends to become less obtrusive as it matures, and the Court had a chance to revisit the issue in Chandler v. Florida. It essentially confined Estes to its facts, noting that Estes took up the issue when television was in its infancy. Thus, Due Process does not currently prohibit electronic broadcasting of trial proceedings.

Reference: Chandler v. Florida, 449 U.S. 560 (1981)

Discussion points for participants include:

• Participants should consider whether they think the Court had just become more comfortable and familiar with television as an accepted part of media and life. Do we expect this to happen with Internet as well?

Current approach of the courts

The courts’ current attitude towards electronic broadcast of trial proceedings is conflicted. The administrative organ of the federal judiciary – the Judicial Conference – is clear in its opposition. But members of the judiciary are not unanimous in this stance, and trial judges have attempted to defy the Judicial Conference’s policy on rare occasions. State courts, in contrast, have done considerable more experimentation.

Participants should recall the debate that played out between Judge Gertner and the First Circuit, assigned as readings above.

Reference: Judge Gertner’s opinion

Reference: First Circuit reversal

Further reference: Summary of legal issues, by Morris Singer and the Tenenbaum defense team

Context is important. In 1995, the nation became enraptured by the televised proceedings of the OJ Simpson Trial. Judge Lance Ito’s decision to allow cameras into his courtroom drew intense criticism, and this criticism was amplified in the circus-like aftermath of the trial. Members of the legal community felt that the decision to allow cameras into the courtroom did lasting damage to the public’s perception of fair and impartial justice.

But others now view the OJ Simpson trial as an anomaly that has unfairly and unduly made the federal courts reticent about allowing cameras in the courtroom.

VIDEO: Professor Nesson on OJ Simpson's impact on cameras in the court

Discussion points:

• Participants – at least, those old enough to remember – can discuss how the OJ trial shaped their views of the justice system.

Relative to the district courts, appeals courts have proven to be quite tech-savvy. The circuit courts are currently engaged in a pilot program that makes .mp3 audio recordings for each oral argument available. Numerous commentators noted the irony that the First Circuit oral arguments for the Tenenbaum case – in which the court ultimately denied Internet transmission of a hearing – were available for download later the same afternoon.

Audio of the oral arguments before the First Circuit See also RSS feed to Circuit Court arguments

Reference for further reading: [tlp.law.pitt.edu/articles/Stawicki.pdf Elizabeth Sawicki, The Future of Cameras in the Courts]

The Internet as distinguished from other forms of broadcast

Much of the materials presented above apply equally to television broadcast as Internet webcast. In many fundamental respects, these technologies are analogous. But to what extent is the Internet a different animal that warrants its own policy considerations?

An open medium of unfiltered communication

Television broadcasts are controlled by intermediaries: news organizations and the for-profit corporate entities that control them. In this context, unbiased gavel-to-gavel coverage is impossible. Moreover, modern day media is routinely criticized for having a short attention span and being soundbite driven. Some argue that the Internet, in contrast, is a free and open medium of communication: the message travels from speaker to listener with no filtration or editing. Such was the distinction emphasized by Professor Nesson during his oral argument at the First Circuit in Tenenbaum.

Listen to the excerpt: Listen to minutes 32:15 – 35:00 of Professor Nesson’s oral argument

VIDEO: Role of TV in the courtroom

Professor Nesson’s argument seems to draw from the imagery of the Internet that characterized John Perry Barlow’s influential “Declaration of Independence of the Internet,” written in 1996.

Recommended Reading: John Perry Barlow's Declaration of Independence

But the Internet has matured greatly in the 12 years after Barlow wrote his declaration. In the following paper, Professor Kreimer identifies several points in the Internet architecture that can act as kinks in the “openness” of the chain from speaker to listener.

Recommended Reading: Seth Kreimer. Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link

Discussion points may include:

• How participants conceive of the Internet: an open and free terrain, or a tangled web of chokepoints set up by intermediaries.
• Has the openness been compromised by an infusion of large corporate interests?
• If the openness remains, is it being threatened?

Privacy

Privacy considerations infused some of the materials set forth above regarding television broadcast, but they play a unique and more pronounced role for Internet webcasting. Two key distinctions arise in this regard between television and the Internet: 1) the notion of “practical obscurity,” and 2) the permanency of the Internet.

Practical obscurity refers to the natural privacy protections afforded to an individual based on the practical difficulties involved in accessing information about him or her. The ability to find anything on the Internet through Google-searching from one’s own home largely eliminates the privacy protections afforded by practical obscurity.

Discussion points may include:

• Participants can consider how the practical obscurity of lawyers, litigants, judges, and juries may be compromised through electronic transmission of courtroom proceedings.
• Participants can consider how practical obscurity compares for Internet as opposed to television.

The Internet is also unique it its permanency. Once something goes up on the web, it is likely there forever. This danger has become pronounced with the emergence of tabloid blogs, which may keep embarrassing material on the Internet forever. Participants can consider the extent to which the privacy considerations of litigants, laywers, judges, or jurors are implicated through webcasting and “Youtube”-ing of trial proceedings.

Reference: Internet Archive

Additional materials not referenced above:

• Tenenbaum's Motion to Admit Internet into the Courtroom
• Record Companies' Appeal to First Circuit Court
• Tenenbaum Opposition to appeal
• Amicus Brief by Courtroom View Network
• EFF's amicus brief

Some Lingering Questions For Discussion

• What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
• So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
• But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
• What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
• Did the presence of so many cameras around the OJ Simpson trial change the trial?
• Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
• Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media?

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

• Abandon the old laws and use self-help or create private sector enforcement =====
  • Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers (optional reading)
• Continue employing the existing imperfect statutory scheme =====
  • Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
• Let courts adapt the case law to technology =====
  • Example: Grokster, where the Supreme Court created a new variation on contributory liability
  • Example: The issue of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
  • Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
• Lobby for new laws in Congress
  • Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
• Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
  • One argument: article

Tools / innovations for the presentation

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

• Question Tool
  • Question tool questioner group: During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. Here is the question tool.

   * [List question tool group members here]

• • Question tool voting group: During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. Here is the question tool.

   * [List question tool voters here]

• Twitter group: As part of the RIAA case, one of the technologies we have been experimenting with is twitter. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

   * [List Twitter users here]

All groups are encourage to reference the JoelFightsBack Website during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.