Berkman Briefing: Inside the Courtroom - The Music Industry Takes on the Uploaders

While the Recording Industry of America’s (RIAA) crackdown on illegal file sharing has resulted in lawsuits against nearly 3000 individuals, a number of legal questions raised in the cases were under debate inside the John Joseph Moakley U. S. Courthouse in Boston yesterday. Judge Nancy Gertner of the U.S. District Court of Massachusetts convened a hearing to address pre-trial motions in the case of Capitol Records et al. v. Alaujan, in which the Recording Industry is suing 40 defendants.

At first, the RIAA’s strategy to sue individual users of peer-to-peer networks generated a stir (see "Grandmother Piracy Lawsuit Dropped" and "12-year-old Settles Music Swap Lawsuit"), but, since last fall, most cases have quietly disappeared in private settlement agreements for sums averaging $3000 (see "RIAA Files 493 More Lawsuits").

Yesterday’s hearing offered a view into what might happen if these cases did not end in settlement negotiations and instead proceeded to trial. Inside the courtroom, the attorneys for the recording industry outnumbered defendants by a two-to-one margin, and the disparity of resources and expertise between the sides only continued to widen. At one point, Judge Gertner dismissed a motion from a defense attorney because, she explained, the “legal argument doesn’t make any sense.”

The Court had previously expressed concern about this resource gap and about defendants who had “no access to counsel.” In order to help raise some legal issues at the core of the case, several parties – including the Motion Picture Association of America, a group of musicians and songwriter societies, and representatives of the Berkman Center for Internet and Society – filed amicus briefs with the court.

The Berkman Center’s brief – signed by Harvard Law School Professors William Fisher, Charles Nesson, and Jonathan Zittrain as well as John Palfrey, Diane Cabell, and Harvard Law School students Renny Hwang and Ory Okolloh – was submitted on behalf of the court rather than on the side of any party in the case. The brief outlines a series of factual considerations – such as the default settings of KaZaA and possible errors that can arise when using IP addresses to identify individuals. It also considers the larger, substantive issues at stake in the lawsuits, including fair use defenses and the question of whether making files available in shared folders constitutes a violation of the copyright holders’ “public distribution” rights.

Attorneys for the RIAA took issue with several points in the Berkman Center’s brief as “off-base.” Plaintiff’s attorney Thomas Perrelli explained that the difficulty of verifying individual uploaders on wireless networks – a question that the amicus brief considers – had not been a “significant problem” in previous RIAA proceedings. As Perrelli explained, “It is correct that the actual downloader may be someone else in the household,” but he assured that these errors can be determined easily after a “modest amount of discovery.”

Judge Gertner repeated her concerns for individuals “not represented by counsel” in future rounds of discovery and also expressed interest in making the proceedings as efficient as possible. Gertner indicated she would consider assigning a Court-appointed “Master” to oversee the affairs of the defendants and would entertain the development of a questionnaire for defendants to identify to determine which defenses or settlement options are most appropriate. Even though the legal issues are far from settled, in closing the hearing, Judge Gertner noted one concrete effect of the RIAA lawsuits: she explained that, after becoming aware of the issues, “the first thing we did is debrief our children.”