(thanks ethan)
F. The District Court’s Order Will Harm Petitioners by Promoting
the Defendant’s Position to the General Public and the Potential
Jury Pool.
There are additional defects in the district court’s Order which only serve to
magnify the harm the Petitioners will likely suffer. The district court bases its
decision to allow a broadcast of the proceedings upon a conclusion that there is a
public interest in the underlying litigation and that broadcasting the “gavel to
gavel” proceedings over the internet will somehow serve as a public benefit—
“especially via a medium so carefully attuned to the Internet Generation captivated
by these file-sharing lawsuits.” See Order at 4. But the district court’s chosen
means to achieve this so called “public benefit” is deeply flawed—indeed it is a
means that appears specifically designed to benefit the Defendant and his counsel
to the detriment of Petitioners.
23
First, the district court has elected to use the Berkman Center—an entity that
was founded by and is currently co-directed by Mr. Tenenbaum’s counsel—as the
exclusive source for the public to view the proposed broadcast. As the district
court likely knows, Berkman Center’s website contains a wide variety of material
that is harshly critical of Petitioners and the proceedings in the underlying
litigation. See, e.g.,
http://blogs.law.harvard.edu /cyberone/2008/11/03/in-plainenglish-quashing-subpoenas
(video discussion erroneously accusing the Petitioners
of misusing the discovery process in an effort to “victimize Joel”);
http://blogs.law.harvard.edu/cyberone/category/riaa (lengthy blog purporting to
describe the district court litigation);
http://blogs.law.harvard.edu/mediaberkman/2008/12/02/radio-berkman-the-pay-us-hotline-fines-and-the-riaa (recorded
interview with Mr. Tenenbaum and his defense counsel regarding the litigation and
advocating on behalf of Mr. Tenenbaum’s legal position). As discussed below,
much of that material misrepresents the actual underlying facts of the case. Id.
The Berkman Center’s website even includes a link to twitter.com, through which
users can access a website entitled “Joel Fights Back” which is actively soliciting
donations to fund Mr. Tenenbaum’s legal costs in connection with this matter. See
www.joelfightsback.com. Accordingly, in the name of “public interest”, the
district court has directed the general public to a website replete with propaganda
regarding the Defendant’s position in connection with this case, and that is
24
specifically designed to promote Defendant’s interests in this case. Under these
circumstances, it is unclear how the court’s January 14, 2009 Order in any way
advances the “public interest.” To the contrary, by electing to expand selectively
the district court’s proceedings into a forum that is plainly sympathetic and
supportive of the Defendant in this case, the Order creates a serious risk of
unfairly infecting the pool from which the jury in this case will be selected.
Indeed, by issuing an order designating the Berkman Center’s website—a
website replete with information that is openly antagonistic to the Plaintiffs’ legal
position in this case—as the exclusive means by which the general public can
educate itself about these proceedings, the district court has already provoked a
rash of publicity directing the public to the Berkman Center’s website. See Order
at 10; Federal Judge Orders Groundbreaking Webcast of Hearing, The Boston
Globe, pages A1, A12 (January 15, 2009) (hereinafter “Globe Article”) (stating
that “Courtroom View Network will “narrowcast” the hearing in its entirety to the
website of the Berkman Center, which is open to the public”); In Internet First,
RIAA File Sharing Hearing to Be Webcast, Wired.com (January 14, 2009)
(hereinafter “Wired Article”) (explaining that “[t]he internet feed will be provided
by Courtroom View Network and will be funneled to the Berkman Center for
Internet and Society at Harvard Law School, which will broadcast the hearing
live”). Much of this new publicity repeats various misrepresentations that are
25
available through the Berkman Center’s website. See, e.g., Wired Article (stating
that “the RIAA seeks $1 million for the seven songs Tenenbaum downloaded in
2004” when in fact there are hundreds of sound recordings at issue in the case and
Petitioners have not specified the damages they are seeking); Globe Article (stating
that “the RIAA sued Tenenbaum over songs it says he downloaded when he was
about 17” when in fact the claims in the case address conduct by the Defendant
that occurred at least as recently as 2005, when the Defendant was in his mid-20s).
The proposed broadcast will likely only increase the number of such inaccurate
reports.