The wrong arm of the law

Want to know the biggest problem with the RIAA's relentless pursuit of file swappers? In the age of the Internet, courts are decades behind the times

It seems those scurvy Swedish Pirates might not walk the plank after all -- at least, not so soon.

Turns out the judge who gave the Pirate Bay Four a year in the slammer and fines of $3.6 million has a vested interest in punishing copyright scofflaws. Judge Thomas Norström is a member of the Swedish Copyright Association (Svenska föreningen för upphovsrätt) and sits on the board of the Swedish Association for the Protection of Industrial Property (Svenska föreningen för industriellt rättsskydd).

[ Get the latest in Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

Other members of Svenska föreningen för upphovsrätt include attorneys representing the recording industry in that trial. (I think I just exhausted my quota of umlauts for the rest of the year -- so much for that long essay on the use of diacritical marks in the names of heavy metal bands.)

TPB4 have accused the judge of having a conflict of interest and plan to ask for a mistrial.

If granted, this would hardly be the first time where the matter of whom the judge played golf and drank scotch with has had more bearing on a decision than the legal merits of a case. But the bigger issue is the courts' deep reluctance to join the rest of us here in the 21st century.

Which brings up the other copyright case stuck in my craw, Sony BMG et al v. Tenenbaum. This is the one where the record companies not only ganged up on a file-swapping college student, they also picked on his parents -- one of whom is an attorney. The Royally PO'd Tenenbaums then got Harvard law professor Charles Nesson on the case, who decided to use it to test the constitutionality of the RIAA's thuggish tactics.

Last week an appeals court overturned a ruling by a lower court that allowed Joel Tenenbaum and his attorneys to Webcast proceedings of the trial on his site, JoelFightsBack. Those of us longing to see the RIAA roasted over an open flame by a team of Harvard legal eagles are now unlikely to get their wish.

The appeals court based its decision on an interpretation of local court rules that say televising proceedings is fine in certain limited circumstances, but only those circumstances. IANAL, but it seems to me like you could interpret those rules in any way you happen to feel like at the moment.

Among other things, Tenenbaum's attorneys argued that Webcasting the trial is effectively no different than attending it in person, which is allowed. First District Court Judge Bruce Selya responded thusly:

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

And that's all he has to say on the matter. We'll just replot those boundaries later, after I'm retired, so I don't have to think about anything new.

Of course, any judge who uses phrases like "On close perscrutation, that contention comes to naught," is probably still wearing powdered wigs and taking laudanum for head colds. (FYI, "perscrutation" means "a thorough searching; a minute inquiry or scrutiny," and yes, I had to look it up.)

Another appeals court judge agreed with Selya's interpretation of the court rules, but said the court rules are stuck in the dark ages:

...in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.... Ironically, however, almost immediately after the oral argument in this First Circuit mandamus proceeding ended, anyone with an internet connection could access a recording of that argument from our website.

In other words, it's against the rules to show you what's happening in the courtroom as it happens, but perfectly OK to show you a recording of it a few minutes later.

Judge Kermit Lipez adds this coda:

The Local Rule at the center of this controversy was adopted in 1990. Since its adoption, dramatic advances in communications technology have had a profound effect on our society. These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities.

Right on, Kermit. Now, how do we go about finding some sensible judges?

Does our legal system need a thorough 21st-century overhaul? Post your thoughts below or e-mail me: cringe@infoworld.com. And, please, keep your use of umlauts to a minimum.

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