LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing

from the that's-not-how-copyright-works dept

First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies — which are quite common in many courthouses — are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).

Soon after reports of the speech came out, a recording of the hearing showed up on YouTube — in violation of the court’s rules. If you go to the link now, it says the recording was taken down due to “a copyright claim by Superior Court of California, County of Los Angeles” (takedown first spotted by the Twitter account @beka_valentine).

Also, the court has announced that it’s shutting down its remote audio program because someone recorded the hearing:

?Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,? read the announcement, which also detailed the rolling back of other COVID-19 protocols. ?The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court?s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.?

As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:

Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, ?Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.?

When asked what is the court?s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: ?Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.?

But… notice what is not included in the list of potential liabilities? Copyright. That’s because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it’s difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act’s prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.

On top of that, it’s hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that — even with the prohibition on recording — in the copyright context, there would be a strong fair use defense.

And so I understand why the court doesn’t want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That’s copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn’t mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.

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Comments on “LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing”

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31 Comments
DMBean says:

Re: Re: YouTube mistake?

I don’t think you’ve understood. You commit perjury if you claim to the host that your copyright in the material has been violated, when it hasn’t been. The OP on this thread is not suggesting that happened, but instead that the court may have contacted Google and made separate representations asking for the video to be taken down. If, in acceding to that request, Google does so in a form involving a banner that references the DMCA, that might be a failure on Google’s part but it certainly isn’t perjury, since no representation (false or otherwise) to a court is involved.

EGF Tech Man (profile) says:

Was the gallery open to the public?

Any court session where the gallery is open to the public should have recordings publicly available and those recordings should be public domain and freely available (none of this supporting a private company you have to BUY records from)…Smaller jurisdictions without much funding can still make them available by uploading them to places like archive.org …

Bill Silverstein (profile) says:

Is it really illegal?

Most of the circuits have ruled that generally videotaping or recording the police in the performance of their duties is a first amendment right. How is that different from court proceedings open to the public?

I can see the issue in limited circumstances where there are threats made and photographs of witnesses used for those threats.

Anonymous Coward says:

Re: Non-Public Courts ??

American Courts are fundamentally "public" proceedings and the judicial bureaucracy has no constitutional authority to hide them from the public.
The Courts, most especially, should be directly accountable to the citizens.

Court restrictions on public access contradict basic democratic principles.

All court proceedings should be videotaped by the specific court itself and made immediately public.
Citizens should be free to unobtrusively record any and all court proceedings.

Of course, government judges and official court officers (lawyers) HATE having their court activities scrutinized publicly — hence the steady trens toward court access restrictions — and even outright secret courts and laws.

ECA (profile) says:

Re: Re: Question

And the odds that 1 person in 100,000 Listened to it? Live?
How many people knew of this system? Did you?
And the judge Didnt restrict it at the beginning.

And the idea of a free service, that lets you listen to the court cases from remote??
I wonder if they even needed to signup for it. Otherwise you will never find the persons who listened.

Anonymous Coward says:

Someone has probably recorded from YouTube by now, and you do not need a YouTube ripping site to do it.

There are software programs that record whatever your computer is hearing.

Using such software to record audio/video from YouTube does not break any laws as long as you do not do it for any kind of financial gain, so don’t get me started on the DMCA.

Anonymous Coward says:

Re: Re:

I used to use that to remove the DRM from purchsased music before it went MP3

I could hit play on the track and then record on the recording software and a couple minutes later I had a DRM-free track I could use on any device.

Since I was not doing it for any kind of "financial gain", meaning to make money, I did not violate the DMCA in any way, since the criminal provisions require that you be doing it for some kind of financial gain.

Anonymous Coward says:

As far as monetary penalties go, if whoever recorded it posted it from abroad, the State Of California has jurisdiction over it.

The system that allowed court proceedings to be viewed from abroad means that someone, in, say, Hong Kong could record it and post it from Hong Kong, and California would not have jurisdiction.

California has no jurisdiction over someone not in the United States, when it comes to computers because California law does not apply outside the United States.

IAmNotYourLawyer (profile) says:

On top of that, it’s hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that — even with the prohibition on recording — in the copyright context, there would be a strong fair use defense.

This conflates two copyrights at issue. Spears probably owns any copyright to the the text of her speech, I’d guess as a literary work. Any copyright to the sound recording, which is a distinct copyright, could be conceivably be owned by the city/state- certainly not Spears. It’s similar to the dual composition-sound recording copyrights in musical recordings.

So while Spears probably could authorize distribution and copying of transcripts of her speech, a copy of the actual audio distributed by the city is another matter.

I agree that fair use would probably protect anyone from copyright liability. And it’s an interesting question if the court proceeding could be copyrighted at all. Court opinions and state statutes are not copyrightable, see https://en.wikipedia.org/wiki/Georgia_v._Public.Resource.Org,_Inc.

Zane (profile) says:

I can see there are good reasons for courts not to allow recordings, there’s always a balance of being open and privacy, and we need to consider the impact this can have on witnesses willing to testify in court. It sounds like the recording was illegal. It starts a precedent if the courts ignore illegal recordings being circulated, and it’s not a very good example for a court to set if it did nothing to prevent this. Is copyright the correct way to handle it (assuming this is accurate), I don’t know. But if you object to copyright being used, it’s likely this would signal more draconian powers being used in the future. So pragmatically, I would let it pass as an issue. Reporters are free to report in an open court with certain restrictions. Spears is free to send her speech to the media if she so wishes.

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