Thirty-thousand lawsuits later, the RIAA changed its mind and said it would stop bringing new cases against non-commercial users. But the lawsuits already in the works are continuing -- and could have an impact on the industry for decades to come.
In one of the most closely followed cases, a jury recently found Jammie Thomas liable of sharing 24 songs and ordered her to pay $1.92 million in damages. Lawyers for Thomas last week filed a motion asking the judge in the case to declare the verdict unconstitutional. That argument might get some traction, given that the judge, Michael Davis, has already gone on record as saying he believes that damages of $750 to $150,000 are too high.
In another high-profile case, Boston grad student Joel Tenenbaum also argues that potential damages of up to $150,000 per track are unconstitutional. Gertner declined to rule on that issue before trial, but instructed Tenenbaum to raise the point again should the jury rule against him.
In the Tenenbaum case, there's an additional issue that's taken on a life of its own: Whether he's entitled to have the trial proceedings Webcast. Tenenbaum argues that he has the right to a public trial and that fellow citizens have the right to attend. When people can't attend in person -- they live too far away, the courtroom is too crowded, etc... -- a Webcast allows them to be present virtually.
Gertner agreed with Tenenbaum and issued an order authorizing a Webcast. The Courtroom View Network would have facilitated the Webcast and the Berkman Center would have made it available for free online.
But the Recording Industry Association of America filed an emergency appeal. The First Circuit ruled in the record labels' favor because, years ago, the court adopted a rule banning cameras in the courtroom.
Last month, Tenenbaum's lawyer, Charles Nesson of Harvard Law, asked U.S. Supreme Court to take up the case. Nesson also wrote to judge David Souter (now retired) to ask him to suspend the First Circuit rule that bans cameras from the court.
That letter didn't get filed, so Nesson just sent another one, this time to judge Stephen Breyer. Breyer will likely recuse himself because, as Nesson points out in his letter, Breyer's son, Michael, is a principal in the Courtroon View Network.
What's striking here isn't that Tenenbaum is arguing for public access to his trial via the Web, but that he's apparently the first to push the point this far.
If there's a single good reason to ban Webcasts, no one has yet stated it. The best the First Circuit could come up with was to say it simply doesn't allow Internet broadcasts. That policy makes no sense. As things are, people who can't attend in person must rely on secondhand media accounts of trials. Meantime, there's an unobtrusive technology that would allow for anyone to view trials via the Web, but the court isn't allowing that technology to be deployed for what appears to be a completely arbitrary reason.