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May 31, 2004

When An RIAA P2P Case Goes To Court [8:27 pm]

Several have pointed to this: Inside the Courtroom - Berkman Briefings

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.

There’s an addendum to the Berkman brief page that I find particularly interesting as I add "wiki" technologies to my own research:

Follow-Up: Interactive Brief

In the coming weeks, the Berkman Center will post a version of this brief on a wiki page that can be modified, updated, and amended by others interested in these issues. This interactive brief is intended to serve as a resource for potential plaintiffs and defendants in similar cases and for those interested in developing the legal issues at stake in these matters.

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