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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