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More from the Tenenbaum case – the last big P2P lawsuit squabble
By CMU Editorial | Published on Thursday 29 January 2009
The Recording Industry Association Of America is appealing the judge’s ruling regarding the webcasting of that previously reported P2P court case against Boston University student Joel Tenenbaum.
As previously reported, the Havard law professor advising Tenenbaum, Charles Nesson, requested that the court case – what could be one of the last RIAA P2P lawsuits against an individual file sharer given the trade body’s recent change of strategy – be webcast on the internet, arguing that the case was of great interest to the net community and it should be made public in a way they are comfortable with. Somewhat surprisingly, Judge Nancy Gertner agreed.
The RIAA don’t want the case to be webcast to the world, possibly because, while US copyright law is generally on their side when it comes to illegal file sharing, all sorts of tricky and, for the record industry, tedious technicalities can come up when cases go to court. Such technicalities being aired over the web could look bad for the record industry.
In a bid to stop the webcast, the trade body somewhat feebly claimed that webcasting pre-trial hearings could influence the potential jury pool in the trial. Gertner called those arguments “specious” and ruled the webcasts would go ahead. The record industry body is now appealing Gertner’s ruling through the First Circuit Court of Appeals.
All of which further delays the case going to court. Not that that means there aren’t developments in the case anyway. Tensions are mounting between the RIAA and Nesson, who is using a team of Havard students to prepare Tenenbaum’s defence, and who clearly sees this as an opportunity to get the boot in against the trade body, who he believes have misused the legal system in their long running and much previously reported campaign of litigation against individuals accused of illegally sharing music files.
In the biggest pre-hearing squabble, Nesson is trying to force a deposition out of Matthew Oppenheim, the RIAA’s former Senior Vice President Of Legal And Business Affairs who left the trade body in 2004, but who has seemingly continued to advise his former employer on its P2P litigation campaign (some claim he essentially ran the campaign on a freelance basis).
A deposition would mean Oppenheim would have to give an out-of-court testimony under oath – ie answer the defence’s questions under oath. The deposition would be recorded and used in court by the defence.
Nesson has subpoenaed Oppenheim according to the rules that govern depositions, but the RIAA claims he failed to correctly follow procedure. As a result they want the deposition to be denied, and for the defence (or, more specifically, Nesson) to have to cover the RIAA’s costs in preparing their formal opposition to the subpoena. The RIAA also argue that Nesson has “unnecessarily complicated these proceedings”.
I’m not really sure what any of this means for the final court case, should it be webcast or not, but I sense that this whole litigation could end up as an expensive squabble over the rights and wrongs of suing individuals who infringe copyrights online between legal types Oppenheim and Nesson, with the RIAA and Tenenbaum sitting on the sidelines paying the bills. Not good for either side really, though it may prove entertaining for those of us not actively involved.
